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PART II – ESTABLISHMENT OF THE FEDERAL COMPETITION AND CONSUMER PROTECTION COMMISSION
Establishment of the Federal Competition and Consumer Protection Commission
(2) The Commission shall be independent in carrying out its functions, powers, duties and responsibilities conferred upon it under this Act.
(3) The Commission—
(a) is a body corporate with perpetual succession and a common seal;
(b) may sue and be sued in its corporate name; and
(c) may acquire, hold and dispose of property, whether movable or immoveable.
(4) The headquarters of the Commission shall be in the Federal Capital Territory, Abuja.
(5) The Commission may establish other offices for the purpose of its business in any part of Nigeria, as he Commission may determine.
Composition of the Commission.
(2) The Board consists of 8 Commissioners made up of –
(a) a Chairman;
(b) a Chief Executive who shall also be the Executive Vice-Chairman;
(c) two Executive Commissioners; and
(d) four non-executive Commissioners,
(3) The Commission shall not be incapacitated from carrying out its powers or functions by virtue of any vacancy or defect in the appointment of the Executive Vice-Chairman or any of the Commissioners.
Tenure of office
(2) The Chairman and all Commissioners, except the Chief Executive and the Executive Commissioners, shall hold office on part-time basis.
(3) Each Commissioner shall serve for a term of four years from the date of appointment at the expiration of which the President may renew his term for a further term of four years and no more.
Resignation from the Commission
6(1) Commissioners shall be persons of recognised standing, qualification (minimum of a University Degree) and not less than 15 years experience in one or more of the following fields—
(a) Finance or Accounting;
(c) Consumer Affairs;
(d) Competition or anti-trust matters;
(e) Engineering or Information Technology;
(f) Economics; and
(g) Public Administration social science or humanities.
(2) A person shall not be appointed or remain in office as a Commissioner if—
(a) he is not a Nigerian citizen;
(b) he is not ordinarily resident in Nigeria;
(c) he is incapacitated by any physical illness;
(d) he has been certified to be of unsound mind;
(e) he is an undischarged bankrupt;
(f) he has been convicted in Nigeria or elsewhere of a criminal offence, being a misdemeanour or felony;
(h) fails to comply with the reporting obligations regarding personal and family assets as required by the Commission’s Code of Conduct.
Removal from office.
A Commissioner may resigns his office by giving three months written notice to the President through the Minister.
(1) A Commissioner may be suspended, or removed from office by the President if he—
(a) is found to have been unqualified for appointment as a Commissioner pursuant to provision of this Act or in breach of conditions of his appointment;
(b) has demonstrated inability to effectively perform the duties of his office;
(c) has been absent from five consecutive meetings of the Board without the consent of the Chairman except he shows good reason for such absence;
(d) is guilty of a serious misconduct in relation to his duties as a Commissioner, and as defined under Public Service Rules;
(e) in the case of a person who possessed a professional qualification, he is disqualified or suspended from practising his profession in any part of the world by an order of an competent authority, or
(f) is in a breach of the conflict of interest rules set out in the Second Schedule of this Act.
(2) The exercise of the powers of the President under this section shall be subject to the approval of the Senate.
Emoluments of Members of the Commission.
(b) is removed from office in accordance with this Act;
(c) resigns from office, or
(d) upon the completion of his tenure of office.
(2) A vacancy in the Board shall be filled by the appointment of another person to the vacant office by the President in accordance with this Act, as soon as is reasonably practicable after the occurrence of such vacancy.
(3) In the instance of a vacancy on the Board that is created consequence upon death, removal or resignation of a Commissioner, any person so appointed shall hold office for the unexpired term of office of his predecessor.
(4) The provisions of subsection (3) shall not apply to the filing of vacancies in respect of Executive Commissioners whenever it is created.
Administration of the Commission
(a) be the accounting officer and chief executive officer of the Commission;
(b) ensure the day-to-day administration of the Commission; and
(c) ensure the self sufficiency of the Executive Vice-Chairman and the Commissioner.
Proceedings of the Commission
(2) At any meeting of the Commission, the Executive Chairman shall preside and, in his absence, the Vice-Chairman or, in the absence of the Vice-Chairman, the Commissioners present shall appoint one of them to preside at that meeting.
(3) Where the Commission desires to obtain the advice of any person on a particular matter, the Commission may arrange for such a person to consult or attend proceedings with the Commission for such period as it deems necessary, but a person who is in attendance by virtue of this sub-section is not entitled to vote at such proceedings.
Validity of proceedings
(a) a vacancy in the membership of the Commission or committee;
(b) a defect in the appointment of a member of the Commission or committee; or
(c) reason that a person not entitled to do so took part in the proceedings of the Commission or committee.
Conflict of interest
15.(1) The Commission may set up one or more committees to carry out, on behalf of the Commission, such functions as the Commission may determine.
(2) A Committee set up under subsection (1) of this section shall consist of such number of persons as the Commission may determine.
(3) A decision of a committee shall be of no effect until it is confirmed by the Commission.
The seal of the Commission.
16.(1) The fixing of the seal of the Commission shall be authenticated by the signatures of the Executive Chairman or any person generally or specifically authorised by the Commission to act for that purpose.
(2) Any contract or instrument, which if made or executed by a person not being a body corporate would not be required to be under seal, may be made or executed on behalf of the Commission by the Executive Chairman or any person generally or specifically authorised by the Commission to act for that purpose.
PART III- FUNCTIONS AND POWERS OF THE COMMISSION
Functions of the Commission.
(a) be responsible for the administration and enforcement of the provisions of this Act and any other enactment with respect to competition and protection of consumers;
(b) initiate broad based policies and review economic activities in Nigeria to identify anti-competitive, anti-consumer protection and restrictive practices which may adversely affect the economic interest of consumers and make rules and regulations under this Act and any other enactment with regards to competitions and protection of consumers;
(c) advise the Federal Government generally on national policies and matter pertaining to all goods and services and on the determination of national norms and standards relating to completion and consumer protection;
(d) report annually on market practices and the implications for consumer choice and competition in the consumer market;
(e) carry out investigations of inquiries considered necessary or desirable in connection with any matter falling within the purview of this Act;
(f) advise the Federal Government on any matter relating to the operation of this Act including making recommendations to the Federal Government for the review of policies, legislation and subsidiary legislation as considered appropriate or as may be requested by the Federal Government or any of its ministries, departments or agencies for the eradication of anti-consumer protection and anti-competitive behaviour;
(g) eliminate anti-competitive agreements, misleading, unfair, deceptive or unconscionable marketing, trading and business practices;
(h) resolve disputes or complaints, issue directives and apply sanctions where necessary;
(i) give and receive advice from other regulatory authorities or agencies within the relevant industry or sector on consumer protection and competition matter;
(j) create public awareness through seminars, workshops, studies and make available information with regard to the exercise of its powers and performance of its functions to the public;
(k) authorise, with or without conditions, prohibit or approve mergers of which notice is received;
(l) protect and promote consumer interests;
(m) regulate and seek ways and means of removing or eliminating from the market, hazardous goods and services, including emission, untested, controversial, emerging or new technologies, products or devices whatsoever, and cause offenders to replace such goods or services with safer and more appropriate alternatives;
(n) publish, from time to time, list of goods and services whose consumption and sale have been banned, withdrawn, restricted or are not approved by the Federal Government or foreign governments;
(0) organise or undertake campaigns and other forms of activities capable of promoting increased private and public consumer awareness;
(P) encourage trade, industry and professional associations to develop and enforce in their various fields quality standards designed to safeguard the interest of consumers;
(q) cause all imported goods to be registered for traceability whenever the need arises;
(r) collaborate with consumer protection groups and associations for consumer protection purposes;
(s) ensure that consumer’ interests receive due consideration at appropriate fora and provide redresses to obnoxious practices or the unscrupulous exploitation of consumers by companies, firms, trade associations or individuals;
(t) ensure the adoption of appropriate measures to guarantee that goods and services are safe for intended or normally safe use;
(u) collaborate with international organisations and agencies , firms, organisations, groups or persons for the purposes of exchange of information to locate the source of substandard goods;
(v) undertake regular research, study and analysis of consumer product standards and services rendered to the consumer and publish relevant observation, findings and recommendations in journals or other forms of publications for the benefit and general information of consumer;
(w) collaborate with government agencies or professional bodies in establishing and using laboratories, testing facilities, common procedures in ensuring or enforcing standards of consumer goods or in assessing the quantum of loss or damage;
(x) act generally to reduce the risk and injury which may occur from consumption of certain consumer items and other services rendered to consumers which action may include restriction or prohibition;
(y) ensure that all service providers comply with local and international standards of quality and safe service delivery; and
(z) cause an offending company, firm, trade, association or individual to protect, compensate, provide relief and safeguards to injured consumers or communities from adverse effects of technologies that are inherently harmful, injurious, violent or highly hazardous;
Powers of the Commission
(a) establish specialised Departments and Units as are considered necessary for the effective and efficient discharge of its functions under this Act;
(b) prevent the circulation of goods or services which constitute a public hazard or an imminent public hazard;
(c) compel manufacturers, suppliers, dealers, importers, wholesalers, retailers, providers of services and other undertakings to comply with the provisions of this Act;
(d) cause quality tests to be conducted on consumer goods as it deems necessary;
(e) compel manufacturers, suppliers, dealers, importers, wholesalers, retailers, or other undertaking where appropriate to—
(i) certify that all standards are met in their goods and services; and
(ii) give public notice of any health hazards associated with their goods or services;
(f) seal up any premises on reasonable suspicion that such premises contain, harbour or are being used to produce or disseminate goods or services that are fake, substandard, hazardous or inimical to consumers’ welfare in collaboration with relevant sector regulators;
(g) undertake studies and publish reports or provide information on matters that affect the interest of consumers and co-operate with or assist any association or body of persons in developing and promoting the observance of standards of conduct for the purpose of ensuring compliance with the provisions of this Act; and
(h) make regulations relating to the charging and collection of fees, levies, fines and the imposition of administrative penalties.
(2) The Commission shall make general information available to persons engaged in economic activities and for the guidance of consumers with respect to their rights and obligations under this Act.
(3) For the purpose of performing its functions under this Act, the Commission may—
(a) prohibit the making or performing of an agreement or arrangements to which this Act relates;
(b) order the termination of any agreement or arrangement pertaining to the action envisage under paragraph (c) or this subsection;
(c) prohibit the withholding of supplies or any threat relating to;
(d) declare any business practice as abuse of a dominant position of market power and prohibit the same, after carrying out necessary investigation;
(e) prohibit the attachment of extraneous conditions to any transaction as it may deem appropriate;
(f) prohibit the discrimination or preferences in prices or other related matters;
(g) require the publication of transparent price lists; and
(h) do such other things as it considers necessary for the effective performance of its functions under this Act.
(4) The Commission shall have power to—
(a) summon and examine witnesses;
(b) call for and examine documents;
(c) administer oaths;
(d) require that any document submitted to it be verified by affidavit;
(e) require the furnishing of returns or information as it may require within such period as it may specify by notice; and
(f) adjourn any investigation or inquiry from time to time.
PART IV – MANAGEMENT AND STAFF OF THE COMMISSION
Secretary to the Commission
(a) the Chief Executive Officer of the Commission;
(b) primarily responsible for the execution of the policies and decisions of the Board and for the day-to-day management and supervision of the activities of the Commission; and
(c) a person possessing sound knowledge of an ability in the organisation and management of competition and or consumer protection matters and shall hold office for a term of four years which may be renewed for another term and no more.
(2) The Executive Commissioners shall be persons possessing sound knowledge of and ability in the organisation and management of regulatory matters with respect to competitive and consumer protection matters and shall hold office for a term of four years which may be renewed for another term and no more.
(3) The Secretary shall be responsible for keeping the corporate records of the Commission and discharging such other duties as the Executive Vice-Chairman or the Commission may assign.
Other staff of the Commission
(2) Notwithstanding anything contained in any other law in force in Nigeria, a legal practitioner employed in or by the Commission in any capacity, may represent the Commission, as counsel, who appears, draws papers, pleadings or documents, or performs any act in connection with proceedings pending or prospective before a court, or a quasi-judicial body, or any other body, board, committee, commission or officer constituted or appointed by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the Federation or any subdivision thereof.
(3) The terms and conditions of service, including remuneration, allowances and other benefits of the employees of the Commission, shall be as determined by the Commission.
(4) The Commission shall pay to persons employed by it such remuneration, including allowances, as the Commission may determine, after consultation with the National Salaries and Wages Commission in line with the guiding principles contained in section 9(2) of this Act.
21(1) The Commission may, subject to the provisions of this Act, make staff regulations relating generally to the conditions of service of the employees of the Commission and such regulations may provide for—
(a) the appointment, promotion and disciplinary control, including dismissal of employees of the Commission; and
(b) appeals by employees of the Commission against dismissal or other disciplinary measures and until such regulations are made, any instrument relating to the conditions of service of officers in the Public Service of the Federation shall be applicable.
(2) Staff regulations made under subsection (1) shall have effect upon publication in the Federal Government Gazette or such other medium as the Commission may determine as will enable the regulations to be brought to the notice of all affected persons.
Pension and gratuity
PART V—FINANCIAL PROVISIONS
Fund of the Commission
(2) There shall be paid and credited into the Fund—
(a) the initial take-off grant made available to the Commission by the Federal Government;
(b) such sums of money as may be appropriated to the Commission in annual budgetary allocation;
(c) such money as may be granted to the Commission by the Government of the Federation;
(d) all fees, levies, and charges statutorily chargeable by the Commission for approvals, testing, licences, certification or any service provided by the Commission in the exercise of its functions under this Act;
(e) all sums of money accruing to the Commission by way of grants-in-aid, gifts, testamentary dispositions, endowments and contributions from any other source provided that the condition for such grants are not inconsistent with the functions, duties and responsibilities of the Commission under this Act;
(f) fees charged for the investigation into and resolution of all disputes bought before the commission either due from the regulated industry, regulators, individuals, corporate bodies or the government; and
(g) any other fund that may be created from time to time by an Act of the National Assembly.
(3) The Fund shall be managed n accordance with the rules made by the Commission and without prejudice to the generality of the power to make rules under this Act, the rules shall in particular contain provisions—
(a) specifying the manner in which the assets or the Fund of the Commission are to be held;
(b) regulating the making of payments into and out of the Fund; and
(c) requiring the keeping of proper accounts and records for the Fund in such form as may be specified in the rules.
Expenditure of the Commission
(a) the cost administration of the Commission; and
(b) the payment of salaries, fees, remuneration, allowances, pensions and gratuities payable to the members and the employees of the Commission, as the case may be;
(c) the payment for all consultancies, contracts, including mobilisation, fluctuations, variations, legal fees and cost on contract administration as may be permissible under applicable laws;
(e) the payment for all purchases; and
(f) undertake such other activities as are connected with all or any of the functions of the Commission under this Act.
(2) Any excess of the Commission’s revenue for any year over the approved expenditure for that year shall be remitted to the Consolidated Revenue Fund of the Federation.
Annual estimates and expenditure.
(2) Notwithstanding the provision of subsection (1), the Commission may also, in each financial year, submit supplementary or adjusted statements of estimated income and expenditure to the National Assembly through the president for approval.
(3) The Commission shall prepare and submit to the President through the Minister, and to the National Assembly, not later than 30th June in each year, a report in such form as the Minister may direct on the activities of the Commission during the immediate preceding year, and shall include in the report, a copy of the audited accounts of the Commission for that year and the auditors’ report on the account
26.(1) The Commission may, with the consent of, or in accordance with the general authority given by the Minister of Finance, borrow such sums of money as the Commission may require in the exercise of its functions under this Act or its subsidiary legislation.
(2) The Commission may accept gifts or grants of money or aids or other property from national, bilateral and multi-lateral organisations and upon such terms and conditions, if any, as may be agreed upon between the donor and the Commission provided that such gifts are not inconsistent with the objectives and functions of the Commission under this Act.
PART VI – ENFORCEMENT WARRANTS AND REQUESTS FOR INFORMATION
Enforcement powers of the Commission
27.(1) The Commission may, for the purpose of ascertaining whether any undertaking has engaged, is engaging or is likely to engage in conduct constituting or likely to constitute a contravention of this Act, require an authorised officer to—
(a) enter and search any premises; and
(b) inspect and remove from the premises any article, document or extract in the possession or under the control of any person.
(2) Except as otherwise directed by the Commission, an officer authorised by the Commission shall only exercise the powers conferred by subsection (1) with a warrant issued under section 28 of this Act.
(3) The Commission shall, if there are grounds to believe that a violation, civil or criminal, of the provisions of this Act or regulations made under this Act, was, is being or will be committed, take any interim measure, including authorising an authorised officer to exercise powers contained in subsection (1) pending the issuance of a warrant to that effect.
(4) In the circumstance described in subsection (3), the Executive Vice-Chairman shall depose to an affidavit verifying these facts before interim measures can be taken.
Issuance of warrant
(2) An authorised officer who applied for a warrant shall, having made reasonable inquiries, disclose to the court—
(a) the details of every previous application for a warrant to search the place that the officer knows has been made within the preceding 12 months; and
(b) the result of the application.
(3) A warrant issued under subsection (1) shall specify a time-limit beyond which articles or documents removed shall not be detained.
(4) The occupier or person in charge of any premises entered pursuant to this section shall provide the authorised officer with all reasonable facilities and assistance for the effective discharge of the officer’s duty under this section.
(5) A person who obstructs or impedes an authorised officer in the performance of his duties under this section commits and offence in accordance with the relevant laws and liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding N5,000,000 or to both fine and imprisonment.
(2) The assistance to be provided under subsection (1) shall be at the written request of the person named in the warrant.
(3) The warrant shall confer powers—
(a) to enter and search the place or premises specified in the warrant on one occasion within 30 days of the date of issue or the warrant at a time that is reasonable in the circumstances;
(b) to use such force for gaining entry and for breaking open any article or thing as is reasonable in the circumstances;
(c) to use such force for gaining entry and for breaking open any article or thing as is reasonable in the circumstances;
(d) to search for and remove documents or any article or thing that the person executing the warrant believes on reasonable grounds may be relevant.
(e) where necessary, to make copies of documents or extracts from documents, that the person executing the warrant believes on reasonable grounds may be relevant; and
(f) where necessary, to require a person to reproduce or assist any person executing the warrant to reproduce, in usable form, information recorded or stored in a document or retrieval system.
(4) A police officer or public officer assisting the person executing the warrant also has the powers stated in subsection (3) (c), (d) and (e) of this section.
(5) A warrant shall be executed in accordance with such conditions as may be specified in the warrant when it is issued.
Duties of a person executing a warrant.
(a) be in possession of the warrant at the time of its execution;
(b) produce it on initial entry and, if requested, at any subsequent time; and
(c) produce a valid identification to the owner or occupier or person in charge of the place if that person is present.
(2) A person executing a warrant shall, on entry into any premises pursuant to a warrant, produce a valid identification document and the authority to enter.
(3) A person executing a warrant shall, before leaving the premises, leave in a conspicuous place at the premises searched—
(a) in the case of a search carried out at a time when the owner or occupier was not present, a written notice stating –
(i) the date and time when the warrant was executed, and
(ii) the name of the person who executed the warrant and the names of the person or persons who rendered assistance in the course of executing the warrant; and
(b) upon the completion of the search authorised by a warrant, where a document or article or thing was removed from the place being searched, leave a schedule containing a list of articles, documents, extracts or things removed from the premises during the search.
(4) Where it is not practicable to prepare a schedule before completing the search, or if the owner or occupier of the place being searched consents, the person executing the warrant –
(a) may, instead of leaving a schedule, leave a notice stating that documents, articles or things have been removed during the search and that, within seven days of the search, a schedule will be delivered, left, or sent stating the documents, articles or things that have been removed; and
(b) shall, within seven days of the search—
(i) deliver a schedule to the owner or occupier,
(ii) leave a schedule in a prominent position at the place searched, or
(iii) send a schedule by registered mail to the owner or occupier of the place searched.
(5) Every schedule prepared under subsection (3) or (4) shall state—
(a) the documents, articles and things that were removed;
(b) the location from which they were removed; and
(c) the location where they are being held.
(6) The Commission, or any person authorised by the Commission for that purpose, may inspect and make copies of any document or extract from such document, obtained pursuant to a warrant.
Duties of occupiers
Request for information of documents
32.(1) Where the Commission considers it necessary, desirable or expedient for the purpose of carrying out its functions under this Act, the Commission may, by notice in writing served on any person, require that person to—
(a) furnish to the Commission, in writing signed by that person or, in the case of an undertaking, by a director or competent officer or agent of the undertaking, within the time and in the manner specified in the notice, any information or class of information as may be specified in the notice;
(b) produce to the Commission or a person specified in the notice, acting on its behalf in accordance with the notice, any document or class of documents specified in the notice; or
(c) appear before the Commission at a time and place specified in the notice to give evidence, either orally or in writing and produce any document or class of documents specified in the notice.
(2) The Commission shall obtain such information as it considers necessary to assist it in its investigations or inquiries and where it considers appropriate, shall examine and obtain verification of documents submitted to it.
(3) Where the information provided in subsection (1) is not furnished to the satisfaction of the Commission, the Commission may make findings on the basis of information available to it.
Summons to attend and give evidence or produce documents
33.(1) A summons to attend and give evidence or to produce documents before the Commission issued under the hand of the Secretary or any member of the Commission shall be served on the person concerned.
(2) Hearings of the Commission shall take place in public, but the Commission may, whenever the circumstances warrant, particularly in order to preserve the business secrets of the undertaking concerned, conduct hearing in camera.
(3) A person who, without sufficient cause, fails or refuses to—
(a) appear before the Commission in compliance with a summons, or
(b) produce a document which the person is required by such summons to produce,
Commits an offence and is liable on conviction to imprisonment for a term not exceeding three years or a fine not exceeding N20,000,000.00 or both the fine and imprisonment.
(4) A person who wilfully obstructs or interrupts the proceedings of the Commission commits an offence and is liable on conviction to imprisonment for a term not exceeding three years or a fine not exceeding N20,000,000.00 or both the fine and imprisonment.
Procedures for handling of evidence by the Commission
34.(1) For the purpose of carrying out its functions and powers under this Act, the Commission may receive in evidence any statement , document, information or matter that may, in its opinion, assist it in dealing effectively with the matter before it, whether or not such evidence is otherwise admissible in a court or law.
(2) The Commission may take evidence on oath and for that purpose a member of the Commission, any employee or agent of the Commission duly authorised for that purpose may administer an oath.
(3) The Commission may require the evidence to be furnished to be given on oath and for that purpose a member of the Commission or any officer of the Commission duly authorised for that purpose may administer an oath.
(4) The Commission may permit a person appearing as a witness before if to give evidence by tendering a written statement and, where the Commission deems fit, verify a written statement by oath.
(5) Where a person has appeared as a witness before the Commission pursuant to a notice issued in that behalf or has given evidence before the Commission, whether pursuant ot a notice or not, the Commission may, if it deems fit, order any sum to be paid to that witness on account of is travelling expenses.
(6) The Commission shall ensure that business secrets of all parties concerned in investigation conducted by it are adequately protected during all stages of an investigation or inquiry.
(7) The Commission shall ensure that business secrets of all parties concerned in investigation conducted by it are adequately protected during all stages of an investigation or inquiry.
Prohibition of disclosure of information or documents
35.(1) Subject to the provisions of subsection (2), the Commission may be order prohibit the publication or communication of any information, document or evidence which is furnished, given or tendered to, or obtained by the Commission in connection with its operations.
(2) An order made by the Commission under subsection (1) may be expressed to have effect for such period as is specified in the order, which shall not be less than two years, but the order shall not have effect where that order was made in connection with an investigation or inquiry conducted by the Commission, after the conclusion of that investigation or inquiry.
(3) A person who, contrary to an order made by the Commission under subsection (1), publishes or communicates any information, document or evidence commits an offence and is liable on conviction to a fine not exceeding N1,000,000.00 in the case of an individual and N50,000,000.00 in the case of a body corporate.
Destruction of records
Discontinuance of inquiry or investigation
37.(1) Where the Commission, at any stage of an investigation or inquiry under this Act, is of the opinion that the matter being investigated or subject to inquiry does not justify further investigation or inquiry, the Commission may discontinue the investigation or inquiry.
(2) Where the Commission discontinues an investigation or inquiry, it shall, within 14 days thereafter, give written notice to the parties concerned in the investigation or inquiry, stating the reasons for discontinuing the investigation or inquiry.
38.(1) Subject to regulations made by the Commission, appeals from any decision of the Commission shall lie to the Tribunal established under section 39 of this Act.
(2) The Commission shall adopt regulations specifying all relevant procedures and requirements relation to appeals under subsection (1) of this section.
PART VII – THE COMPETITION AND CONSUMER PROTECTION TRIBUNAL
Establishment of the Competition and Consumer Protection Tribunal
(2) The Tribunal shall adjudicate over conducts prohibited under this Act and exercise the jurisdictions, powers and authority conferred on it under this Act or any other enactment.
(3) The Tribunal shall keep records of its proceedings and have jurisdiction throughout the Federation.
Composition of the Tribunal
(a) a chairman, who shall be a legal practitioner with 10 years post call and cognate experience in the field of competition, consumer protection or commercial and industrial law; and
(b) six other members, with at least 10 years professional experience in any one or more of the following educational fields—
(i) competition and consumer protection law,
(ii) commerce and industry,
(iii) public affairs,
(v) finance, or
(vi) business administration or management.
(2) The Chairman and other members of the Tribunal shall be appointed by the President subject to confirmation by the Senate.
Tenure of office
Disqualification from membership of the Tribunal
(a) an un discharged bankrupt;
(b) under any order of a competent court, declared mentally unfit;
(c) a convicted felon under the laws of Nigeria;
(d) found guilty of serious misconduct incapacitating the person from carrying out the functions of the office; or
(e) found to have been engaging in any activity that may undermine the integrity of the Tribunal.
Resignation and removal
(2) A member of the Tribunal may be removed from office by the President—
(a) on grounds of gross misconduct, after due inquiry has been made and the member concerned informed of the reasons for the removal and given an opportunity of being heard in respect of the reasons;
(b) on grounds of incapacity on account of ill health; or
(c) for failure to satisfy the requirements of section 42 of this Act.
(3) Any exercise of the powers of the President under this section shall be based on the recommendation of the National Judicial Council.
Filing of vacancies
Registrar of the Tribunal
(a) subject to the general control of the Commission, be responsible for keeping records of the proceedings of the Tribunal;
(b) be the head of the Registry and responsible for—
(i) the day-to-day administration of the Tribunal, and
(ii) the direction and control of all other employees of the Tribunal.
Other staff of the Tribunal
46.(1) The Tribunal shall appoint such other employees as it deems necessary for the efficient performance of the functions of the Tribunal and the remuneration of persons so employed shall be determined by the National Salaries, Incomes and Wages Commission.
(2) Employment in the Tribunal shall be subject to the provisions of the Pension Reform Act and officers and employees of the Tribunal are entitled to pensions and other retirement benefits as are prescribed under the Pension Reform Act.
(a) hear appeals from or review any decision of the Commission taken in the course of the Implementation of any of the provisions of this Act as may be referred to it;
(b) hear appeals from or review any decision from the exercise of the powers of any sector of specific regulatory authority in a regulated industry in respect of competition and consumer protection matters;
(c) issue such orders as may be required of it under this Act; and
(d) make any ruling or such other orders as may be necessary or incidental to the performance of its functions under this Act.
(2) Notwithstanding the provisions the provisions of subsection (1) (b), all appeals or request for review of the exercise of the power of any sector of specific authority shall first be heard and determined by the Commission before such appeals can lie before or be determined by the Tribunal.
Management of the work of the Tribunal
(2) For the purpose of subsection (1), members of the Tribunal shall be constituted into Panels of at least three members.
(3) Further to the provision of subsection (2), the Chairman shall ensure that at least one member of each Panel has requisite legal training, experience and good knowledge of competition and consumer protection matters.
(4) The Chairman shall designate a member to preside over proceedings of a Panel at any sitting.
(5) Where, as a result of withdrawal from a hearing for the reason stated in section 49 (2) of this Act or for any other reason, a member of a Panel is unable to complete the proceedings in a matter assigned to that Panel, the Chairman shall—
(a) direct that the hearing of that matter proceed before the remaining members of the Panel, subject to the requirements of subsection (4), or
(b) terminate the proceedings before that Panel and constitute another Panel, which may include any member of the original Pane and direct that panel to conduct a new hearing.
(6) The decision of a Panel on a matter referred to it shall be in writing and include reasons for that decision.
(7) The Tribunal may extend or reduce a period prescribed for the taking or doing of any action required to be done under this Part.
(8) A decision of a Panel contemplated in subsection (6) or of a majority of the members of a Panel shall be the decision of the Tribunal.
Disclosure of interest by members of a panel
(2) A member affected by the provision of subsection (1) shall –
(a) immediately and fully disclose the fact and nature of the interest to the Chairman and to the presiding member at that hearing; and
(b) withdraw from any further involvement in that hearing.
Procedural rules of the Tribunal
(2) The Tribunal shall, for the purpose of discharging its duty under this Act, have power to—
(a) summon and enforce the attendance of any person, including the power to examine a person under oath;
(b) require the discovery and production of documents;
(c) call for and examine witnesses under oath;
(d) receive evidence on a affidavits; and
(e) do anything which, in the opinion of the Tribunal, is deemed necessary to issue a final and reasoned decision on the merit of the matter before it.
Powers of the Tribunal to impose penalties
(a) a prohibited practice under this Act; or
(b) the contravention of, or failure to comply with, an interim order of the Tribunal.
(2) An administrative penalty imposed under subsection (1) shall not exceed 10% of the undertaking’s annual turnover in Nigeria and its exports from Nigeria during the preceding financial year.
(3) When determining an appropriate penalty under subsection (1), the Tribunal shall consider—
(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;
(b) 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 Commission and the Tribunal; or
(g) whether the defaulting party has previously been found to be in contravention of any of the provisions of this Act.
Powers of the Tribunal to order sale of assets
(a) cannot adequately be remedied under any other provision of this Act; or
(b) is substantially a repeat by that undertaking of conduct previously found by the Tribunal to be a prohibited practice.
(2) An order made under subsection (1) may provide for time-frame for compliance and any other term that the Tribunal considers appropriate, having regard to the commercial interests of the parties concerned.
Registration and enforcement of the decisions of the Tribunal
(a) binding on the parties before the Tribunal; and
(b) registered with the High Court for the purpose of enforcement only.
Judicial review by the Court of Appeal
55.(1) Any party to a proceeding who is not satisfied with a ruling, award or judgment of the Tribunal may appeal to the Court of Appeal upon giving notice in writing to the Secretary to the Tribunal within 30 days after the date on which the ruling, award or judgment was given.
(2) A notice of appeal filed pursuant to subsection (1) shall set out all the grounds on which the review is sought.
(3) Upon the receipt of a notice of appeal under subsections (1) and (2), the Secretary to the Tribunal shall cause the notice to be given to the Chief Registrar of the Court of Appeal along with the record of proceedings and exhibits tendered at the hearing before the Tribunal.
Right to legal representation
(2) Where a party or its representative is unable for good cause to attend a hearing before the Tribunal, the Tribunal may adjourn the hearing for such reasonable time as it deems fit, or admit the matter to be made by some other person or by way of a written address.
Payment of allowances and emoluments of members of the Tribunal
Funding of the Tribunal
(2) There shall be paid and credited into to the Fund established under subsection (1)—
(a) annual subventions and budgetary allocations from the Federal Government with respect to recurrent and capital expenditures; and
(b) fees collected for services rendered by the Tribunal under this Act, and such other sums of money as may be provided by the Federal Government for the Tribunal.
(3) The Tribunal shall, at the end of each financial year, submit its budget for the following year to the Minister.
(4) The Minister shall ensure that adequate budgetary provision is made for the payment of emoluments and allowances of members and staff of the Tribunal including all other expenditures of the Tribunal for the efficient discharge of the duties and responsibilities of the Tribunal under this Act.
PART VII – RESTRICTIVE AGREEMENTS
Prohibition of agreements in restraint of competition.
59.(1) Any agreement among undertakings or a decision of an association of undertakings that has the purpose of actual or likely effect of preventing, restricting or distorting competition in any market is unlawful and, subject to section 61 of this Act, void and of no legal effect.
(2) The prohibited acts under subsection (1) include, in particular—
(a) directly or indirectly fixing a purchase or selling price of goods or services, subject to section 107 of this Act;
(b) dividing markets by allocating customers, suppliers, territories or specific types of goods or services;
(c) limiting or controlling production or distribution of any goods or services, markets, technical development or investment, subject to section 108 of this Act;
(d) engaging in collusive tendering, subject to section 109 of this Act; or
(e) making the conclusion of an agreement subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have not connection with the subject of such agreement.
Agreements authorise by the Commission
(a) contributes to the improvement of production or distribution of goods, services or the promotion of technical or economic progress, while allowing consumers a fair share of the resulting benefit;
(b) imposes on the undertakings concerned only such restrictions as are indispensable to the attainment of the objectives referred to in paragraph (a) of this section; and
(c) does not afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the goods or services concerned.
Prohibition of agreement containing exclusionary provisions.
Agreements by suppliers
(a) withhold supplies of goods or services from dealers (whether parties to the agreement or not) who resell or have resold any goods or services in breach of any condition as to the price at which those goods or services may be resold; or
(b) refuse to supply goods or services to the dealers referred to in paragraph (a) exception terms and conditions that are less favourable than those applicable to other dealers carrying on business in similar circumstances.
(2) No two or more undertakings shall enter into, or carry out, any agreement authorising the recovery of penalties, however described, by or on behalf of the parties to the agreement from dealers who resell or have resold goods or services in breach of any condition described in paragraph (a)
Prohibition of minimum resale price maintenance
63.(1) Any term or condition of an agreement for the sale of any goods or services is void to the extent that it purports to establish minimum prices to be charged on the resale of the goods or services in Nigeria.
(2) Subject to the provisions of subsections (3) and (4), no undertaking or its agent shall—
(a) include in an agreement for the sale of goods or services, a term or condition which is void under this Act; or
(b) notify dealers or otherwise publish on or in relation to any goods or services, price stated or calculated to be understood as the minimum price which may be charged on the resale of the goods or services in Nigeria.
(3) The provisions of subsection (2) (a) do not affect the enforceability of an agreement except in respect of the term or condition which is void under this Act.
(4) Nothing in this section shall be construed as precluding an undertaking or associating, or person acting on the undertaking’s behalf, from notifying the dealers or otherwise publishing prices recommended as appropriate for the resale of goods or services supplied or to be supplied by that undertaking.
(2) Notice of any term or condition which is void under section 63 of this Act, or which would be so void if included in an agreement relating to the sale of patented goods, is of no effect for the purpose of limiting the right of a dealer to dispose of those goods without infringement of the patent.
(3) Nothing contained in this Act or this section shall affect the validity, as between the parties to an agreement and their successors, of any term or condition of—
(a) a licence granted by the proprietor of a patent or a licensee under any such licence; or
(b) any assignment of a patent so far as it regulates the price at which goods produced or processed by the licensee or assignee may be sold by him.
Maintenance of minimum resale prices
65.(1) No undertaking shall withhold supplies of any goods or services from a dealer seeking to obtain them for resale on the ground that the dealer—
(a) has sold goods or services obtained either directly or indirectly from that undertaking at a price below the resale price or has supplied them either directly or indirectly to an third party who had done so; or
(b) is likely, if the goods or services are supplied to that dealer, to sell them at a price below the resale price, or supply them either directly or indirectly to a third party who would be likely to do so.
(2) in this section, “the resale price”, in relation to a sale of any description, means the price—
(a) notified to the dealer or otherwise published by or on behalf of a supplier of the goods or services in question, whether lawfully or not, as the price or minimum price which is to be charged on or is recommended as appropriate for a sale of that description; or
(b) prescribed or purporting to be prescribed for that purpose by an agreement between the dealer and any supplier.
(3) Where, under this section, it would be unlawful for an undertaking to withhold supplies of goods or services, it is also unlawful for the undertaking to cause or procure any other undertaking to do so.
Withholding of products from a dealer by a supplier
(a) the undertaking refuses to supply those goods or services to the order of the dealer;
(b) the undertaking refuses to supply those goods or services to the dealer except at prices or on terms or conditions as to credit, discount or other matters which the undertaking normally supplies those goods or services to other dealers carrying on business in similar circumstances; or
(c) although the undertaking enters into an agreement to supply goods or services to the dealer, the undertaking treats the dealer in a manner significantly less favourable than that in which it normally treats other dealers in respect of times or methods of delivery or other matters arising in the execution of the agreement.
(2) An undertaking shall not be treated as withholding goods or services on any ground mentioned in this Part if, in addition to that ground, the undertaking has other grounds which, standing alone, would have led the undertaking to withhold those goods or services.
(3) Subject to subsection (5), where in the proceedings brought against an undertaking in respect of a contravention of the provisions of subsection (1), the matters specified in subsection (4) are proved, it shall be presumed, unless the contrary is proved, that the goods or services concerned were withheld on the ground that the dealer had acted or was likely to act as described in subsection (1).
(4) The matters referred to in subsection (3) are –
(a) supplies of goods or services were withheld from a dealer;
(b) during a period ending immediately before the supplies were so withheld, the undertaking was doing business with the dealer or was supplying goods or services of the same description to other dealers carrying on business in similar circumstances; and
(c) the dealer, to the Undertaking’s knowledge, had within the preceding six months, acted as described in subsection (1) of this Act or had indicated its intention to act in relation to the goods or services in question.
(5) The provisions of subsections (3) and (4) shall not apply where the proof that goods or services were withheld consists only of evidence of requirements imposed by the undertaking in respect of the time at which or the form in which payment was to be made for goods or services supplied or to be supplied.
Complaints to and issuance of notice by the Commission of restrictive agreement
(2) Any person who has suffered a loss as a result of any restrictive agreement or decision may make a complaint to the Commission and the Commission may, it it is satisfied that the circumstances of the case so warrant, exercise any of the powers granted to it under this Act as it deems fit, including making interim orders mandating the cessation of the restrictive agreement pending the conclusion of investigation.
(3) Any person who may have suffered loss as a result of this agreements or not satisfied with the decision of the Commission may apply to the Tribunal for review.
(a) combinations or activities of employees for the reasonable protection of employees;
(b) arrangements for collective bargaining on behalf of employers and employees for the purpose of fixing minimum terms and conditions of employment;
(c) activities of professional associations designed to develop or enforce standards of professional qualifications;
(d) a contract or an arrangement among partners, none of whom is a body corporate, in so far as it contains provisions in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement or understanding while that party is, or after that party ceases to be a partner;
(e) a contract of service or a contract for the provision of services in so far as it contains provisions by which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which that person may engage during or after the termination of the contract and this period shall not be more than two years;
(f) a contract for the sale of a business or shares in the capital of a body corporate carrying on business in so far as it contains a provision that is solely for the protection of the purchases in respect of the goodwill of the body corporate;
(g) any act done to give effect to a provision of a contract or an arrangement referred to in paragraphs (a) to (f) of this subsection.
(2) With respect to professional services subject to the regulation of professional bodies, the Commission may issue guidelines for the application of certain provisions of this Act to the supply of services or conduct of business by members of such professional associations.
(3) For the purposes of subsection (2), the Commission shall, from time to time, publish a list of professional bodies to whom the subsection applies.
(4) Any privilege or exemption granted by the Commission under subsection (1) shall be consistent with the provisions of this Act.
(5) The Commission shall, as it considers appropriate, develop and publish procedural rules to be applied to group inquiries.
Offences and penalties under this Part.
69.(1) An undertaking that makes or enters into an agreement or decision declared unlawful under this Part commits an offence and is liable on conviction where the undertaking is—
(a) a natural person, to imprisonment not exceeding a term of five years, or to a fine not exceeding a term of five year, or to a fine not exceeding N5,000,000.00 or both the fine and imprisonment; and
(b) a body corporate, to a fine not exceeding 10% of its turnover in the preceding business year.
(2) Where the offence is committed by a body corporate, each director of the body corporate shall be liable to be proceeded against and on conviction dealt with as specified in subsection (1) (a)
(3) An undertaking that fails to obey an order served by the Commission under subsection (1) of section 67 (1) of this Act commits an offence and where the undertaking is—
(a) a natural person, it is liable on conviction to imprisonment for a term not exceeding three years, or to payment of a fine not exceeding N50,000,000.00 or both the fine and imprisonment; or
(b) a body corporate, it is liable on conviction to a fine not exceeding 10% of its turnover in the preceding business year.
(4) Where the offence is committed by a body corporate, each director of the body corporate shall be liable to be proceeded against and on conviction dealt with
PART IX – ABUSE OF A DOMINANT POSITION
Dominant or abuse of dominant position in the relevant market
70.(1) For the purpose of this Act, an undertaking is considered to be in a dominant position if it is able to act without taking account of the reaction of its customers, consumers or competitors.
(2) A dominant position in a relevant market exists where an undertaking enjoys a position of economic strength enabling it to prevent effective competition being maintained on the relevant market and having the power to behave to an appreciable extent independently of its competitors, customers and ultimately consumer.
(3) The Commission shall publish the size of market share that may constitute dominant position in particular markets.
Criteria for identifying the relevant market
(a) geographical boundaries that identify groups of sellers and buyers of goods or services within which competition is likely to be restrained;
(b) goods or services which are regarded as interchangeable or substitutable by the consumer by reason of their characteristics, prices and the intended use; and
(c) suppliers to which consumers may turn to in the short term, if the abuse of dominance leads to a significant increase in price or to other detrimental effect upon the consumer.
Abuse of a dominant position prohibited
72.(1) Subject to the provisions of subsection (3), any abuse by one or more undertakings of a dominant position in a market is prohibited.
(2) For the purposes of this Act, an abuse of dominant position occurs where one or more undertakings in a dominant position—
(a) charge an excessive price to the detriment of consumers;
(b) refuse to give a competitor access to an essential facility when it is economically feasible to do so;
(c) engage in an exclusionary act, other than an act listed in paragraph (d), if the anti-competitive effect of that act outweighs its technological efficiency and other precompetitive gains; or
(d) engage in any of the following exclusionary acts, unless the firm concerned can sow technological efficiency and other pro-competitive gains which outweigh the anti-competitive effect of its act—
(i) requiring or inducing a supplier or customer not to deal with a competitor,
(ii) refusing to supply scarce goods to a competitor when supplying those goods is economically feasible,
(iii) selling goods or services on condition that the buyer purchases separate goods or services unrelated to the object of a contract, or forcing a buyer to accept a condition unrelated to object of a contract,
(iv) selling goods or services below their marginal or average cost, or
(v) buying up a scarce supply of intermediate goods or resources required by a competitor.
(3) For the purpose of assessing market dominance, account shall be taken in particular of—
(a) the market share of the undertaking or undertakings concerned in the relevant market;
(b) its or their financial power;
(c) its or their access to supplies or markets;
(d) its or their links with other undertakings;
(e) legal or factual barriers to market entry by other undertakings;
(f) actual or potential competition by undertakings established within or outside the scope of application of this Act;
(g) its or their ability to shift supply or demand to other goods or services; and
(h) the ability of the opposite market side to resort to other undertakings.
(3) An undertaking shall not be treated as abusing a dominant position if its conduct—
(a) contributes to the improvement of production or distribution of goods or services or the promotion of technological or economic progress, while allowing consumers a fair share of the resulting benefit;
(b) is indispensable to the attainment of the objectives referred to in paragraph (a); and
(c) does not afford the undertaking the possibility of eliminating competition in respect of a substantial part of the goods or services concerned.
(4) An undertaking may be considered as abusing its dominant position with regard to subsection (3) (c) of this section if the Commission is satisfied that its activities –
(a) have the effect of unreasonably lessening competition in a market; and
(b) impede the transfer or dissemination of technology.
Consequences of abuse of a dominant position
(a) notify the undertaking of its findings accompanied by a copy of the report; and
(b) direct the undertaking to immediately cease the abusive practice.
(2) The provisions of this section shall not apply to exclusive dealing arrangements or market restrictions between or among affiliated or interconnected undertakings.
(3) An undertaking that abuses its dominant position in a market commits an offence under this Act and is liable on conviction to a fine of not less than 10% of its turnover in the preceding business year or such higher percentage as the court may determine under the circumstances of the particular case.
Penalties for failure to comply with a cease order
74.(1) An undertaking that fails to cease an abusive practice after receiving an order of the Commission to that effect commits an offence and is liable on conviction to a fine not exceeding 10% of its turnover in the preceding business year or to such higher percentage as the court may determine given the circumstances of the particular case.
(2) Any director of an undertaking that commits an offence under subsection (1) is liable on conviction to imprisonment for a term not exceeding three years, or to payment of a fine not exceeding N50,000,000.00 or to both the fine and imprisonment.
Suspension of punishment
Power of the Commission to investigate a monopoly situation.
Determination of a monopoly situation by the Commission
(a) supply of goods or services of any descriptions; or
(b) import and export of goods and services of any description from Nigeria, to the extent it has an effect on competition in a market in Nigeria, as may be prescribed in regulations made by the Commission.
General powers of the Commission to obtain information
(a) exercise any of its powers, as contained under section 30 or this Act; and
(b) require any person or body corporate to furnish the Commission with such information as the Commission may consider necessary for the purposes of conducting such investigation.
Supplementary provision s as to the requirement to furnish information
Penalties for refusal to furnish information to the Commission
80.(1) A person who furnished information or make a statement required by the Commission under this Act knowing that such statement is false in any material respect or recklessly makes a statement which is false in any material way, commits an offence and is liable on conviction to imprisonment for a term not exceeding N2,000,000.00 or to both the fine and imprisonment.
Order for monopoly investigation
(a) specify the description of goods or services to which the order relates;
(b) state whether it relates to supply, import or export of goods and services; and
(c) specify the part of Nigeria in respect of which the investigation is to be limited where it is to be limited to a part of Nigeria.
Request for a monopoly investigation
82(1) Any person or body corporate may make a request for a monopoly investigation to the Commission.
(2) A monopoly investigation may be referred to the Commission by a court, agency of the Government of the Federation or any State or Local Government of the Federation.
(3) A request made under subsection (1) shall be accompanied by an affidavit deposing to the facts giving rise to the request.
(4) In responding to a request or referral referred to subsections (1) and (2) the Commission may limit its report to –
(a) whether a monopoly situation exists in relation to the matters set out in the request or reference;
(b) where a monopoly situation is determined to exist, which of the provisions of this Act is applicable;
(c) the undertaking or undertakings in whose favour the monopoly situation exists;
(d) the acts taken by way of anti-competition practices or otherwise by the undertaking or undertakings concerned to exploit or maintain the monopoly situation or to further an anti-competitive practice; and
(e) any act or omission on the part of the undertaking or undertakings concerned attributable to the existence of the monopoly situation and, if so, by what manner it is so attributable.
Notification of a request for a monopoly investigation
Report on a monopoly investigation
81.(1) The Commission shall furnish to the Tribunal reports on completed monopoly investigations at such times or intervals as may be agreed from time to time between the Tribunal and the Commission.
(2) In making report on a monopoly investigation, the Commission shall include in the report definite conclusions on the questions or issues that prompted the investigation, together with an account of the Commission’s reasons for those conclusions.
(3) Where the Commission finds that a monopoly situation exists and that facts found by the Commission in pursuance of its investigation operate or may be expected to operate against the public interest, it report shall specify those facts and the particular effects which in the Commission’s opinion, those facts have or may be expected to have.
(4) The Commission –
(a) shall, as part of any investigation under this Part, consider the actions to be taken to remedy or prevent any adverse effects resulting from a monopoly situation; and
(b) may, if it deems fit, include in its report on a monopoly investigation recommendations in support of the actions to be taken.
(5) The phrase “action to be taken” in subsection (4) (a) and (b) means the action to be taken by-
(a) the Minister or any other Minister of the Government of the Federation or any department or agency of Government where the resulting adverse effects affects the sphere of responsibility or the statutory function of any Minister or of any of the department or agencies of Government; or
(b) the undertaking or undertakings in whose favour the monopoly situation in question exists.
Time frame for a report on a monopoly investigation
(2) Where a report of the Commission is not made before the end of the period specified by the Commission under subsection (1) or if one or more extended periods allowed for making the report under subsection (3) is not met before the end of that extended period or of the last of those extended periods, as the action has already been taken, no further action shall be taken in relation to that investigation.
(3) Where a monopoly investigation cuts across the sphere of responsibilities of more than one Minister and the period of reporting on an investigation has already been extended once or more than once under any direction issued under this subsection, a joint directive of all the Ministers concerned may be issued allowing the Commission such extended period to report on the reference as may be specified in the direction.
Powers of the Tribunal in relation to a report on a monopoly
(a) a monopoly situation exists and that fact found by the Commission in its investigations operate or may be expected to operate, against the public interest; and
(b) a report of the commission herein shall specify particular adverse effects of the monopoly situation to the public interest.
(2) The Tribunal may, based on the findings of the commission pursuant to subsection (1), exercise any of its powers under this Act or make such orders as considered necessary for the purpose of remedying or preventing the adverse affects specified in the report.
(3) An order of the Tribunal made under subsection (2) may in particular –
(a) declare an agreement to be unlawful to such extent and in such circumstances as may be provided by this Act or regulations made under this Act;
(b) require any party to such agreement as may be specified or described in the order to terminate the agreement within.
(c) require a person supplying goods or services to publish a list of prices, with or without such further information as may be specified or described in the order;
(d) prohibit or restrict the acquisition by any undertaking of the whole or part of another undertaking or
(e) provide for the division of any undertaking by the sale of any part of its shares, assets or otherwise for which purpose all the activities carried on by way of business by any one undertakings may be treated as a single business or for the division of any group of interconnected undertakings and for all such matters as may be necessary to effect or take account of the division , including the –
(i) transfer or vesting of property rights, liabilities or obligation,
(ii) adjustment of contracts, whether by discharge or reduction of any liability or obligation or otherwise;
(iii) creation, allotment, surrender or cancellation of shares, stock or securities
(iv) formation or winding up of an undertaking or association, corporate or unincorporated, or the amendment of the memorandum and articles or other instrument regulating any undertaking or association,
(v) extent to which and the circumstances in which provisions of the order affecting an undertaking or association in its share capital, constitution or other matters may be altered by the undertaking or association and the registration under any enactment of the order by undertakings or associations so affected, or
(vi) Continuation with any necessary change of parties of any legal proceedings
(4) The reference in subsection (3) (e) to the division of an undertaking shall be construed as including a reference to the separation by the sale of any part of any shares or assets concerned of undertakings which are under joint control.
(5) In determining whether or not and to what or in what manner to exercise any of the powers referred to in sub section (2), the tribunal shall take into account the objectives of this Act.
(6) Where a report made under subsection (1) specifies that the undertaking in whose favor the monopoly situation exists is a body corporate fulfilling the following conditions –
(a) that the affairs of the body corporate are managed by its members. And
(b) that by virtue of any enactment, those members are appointed by a supervising minister of that body corporate,
The tribunal shall, if requested, receive representations from the Minister who appointed members of that body corporate and shall consider such representations before making any orders or exercising any powers.
(7) In relation to any such undertaking as is mentioned in subsection (6) the powers exercisable under section (2) shall not include the powers specified in subsection (3) (e)
General Provision relating to orders made under this Part
87(1) The provisions of this section shall apply to an order made under section 86 of this act.
(2) An order made under section 86 of this Act declaring certain acts to be unlawful shall apply to all undertakings or to such undertakings as may be specified or described in the order.
(3) Nothing in any order made under section 86 of this Act shall have effect so as to apply to any undertaking in relation to its conduct outside Nigeria, unless that undertaking is –
(a) a citizen of Nigeria; or
(b) a body corporate incorporated under the Companies and Allied Matters Act and carrying on business in Nigeria, either alone or in partnership with one or more other undertakings.
(4) An order to which this section applies may be extended so as to prohibit the carrying out any agreement already in existence on the date on which the order is made.
(5) Nothing in any order to which this section applies shall have the effect as to restrict any act for the purpose of restraining an infringement of a Nigerian patent or so as to restrict any undertaking as to the conditions which it attaches to a license to do anything the doing of which would, but for the license, be an infringement of a Nigerian Patent.
(6) The tribunal shall include, in an order made under section 86 of this Act, the power to give any directive to a person, body corporate or association specified in the order to –
(a) take such steps within its competence as may be specified or described in the direction for the purpose of carrying out, securing compliance with the order; or
(b) do or refrain from doing anything so specified or described which the person, body corporate or association may be required by the order to do or refrain from doing and may authorize the Minister in charge of the person, body corporate or association to vary revoke any directives so given.
(7) Prior to making any order under section 87 of this Act, the Tribunal shall publish, in such manner as it deems appropriate, a notice –
(a) stating its intention to make the order;
(b) indicating the nature of the provisions to be embodied in the order; and
(c) requesting any person, body corporate or association whose interest is likely to be affected by the order and who is desirous of making representations in respect of the order to do so in writing within 30 days from the date of publication of the notice for consideration by the Tribunal.
PART XI – PRICE REGULATION
(2) The president shall not make an order under subsection (1) unless the president is satisfied that
(a) goods or services to which the order relates are or will be supplied or acquired in a market in which competition is limited or is likely to be lessened.
(b) it is necessary or desirable for the prices of those goods or services to be controlled in accordance with this Act in the interest of users, consumers, or as the case may be, suppliers; and
(c) the declaration of price regulation is narrowly designed, both in terms of duration and the list of goods and services affected as is necessary to remedy the effects of the absence of competition in the relevant market.
(3) An order shall not be made under subsection (1) prior to the submission to the president of a report of the commission assessing the state of competition in the relevant market and providing recommendations on the desirability and likely effects of implementing price regulation or other remedies.
(4) An order made under subsection (1) shall identify the goods, services to which it pertains by –
(a) a description of the goods or services;
(b) a description of the market to which the goods or services belong; and
(d) the specification of the sector of the economy affected or likely to be effected.
(5) Any order made under subsection (1) shall specify the date on which it shall expire.
Commission to report to the President on Price regulation
89.(1) The president may, by notice in writing, require the commission to report by such date as the president shall specify in the notice, on the need to amend, vary or revoke an order made under section 88 of this Act.
(2) Upon the issuance of a notice to the commission under subsection (1) –
(a) the commission shall cause to be published in such manner as the commission may consider appropriate, including the mass media, a notice –
(i) stating that the requirement has been made and specifying the matter to which it pertains, and
(ii) inviting interested persons to present their views on the matter to the Commission, and specifying the time and manner within which they may do so; and
(b) the commission shall not submit a report to the president until it has given a reasonable opportunity to interested persons to furnish their views in accordance with requirement of paragraph (a) (ii).
(3) The commission may at its discretion recommend to the president to amend, vary or revoke an order made under section 88 of this Act.
(4) The president shall cause a copy of every report submitted by the Commission under this section to be published in such manner as it considers appropriate.
Regulated goods or services to be supplied in accordance with authorised prices
90.(1) For the purpose of this part, “regulated goods” or “ regulated services” means goods or services in respect of which there is, for the time being in force, an order made under section 88 of this Act.
(2) Within a reasonable period after an order under Section 88 of this Act is made, the commission shall set and cause to be published an authorized price of the regulated goods or services that are the subject of the order.
(3) Following the publication of an authorized price by the commission under subsection (2), an undertaking shall ot supply the regulated goods and services in Nigeria other than for the authorized price.
(4) Any provision of an agreement in violation of the provisions subsection (3) is unenforceable.
(5) A person who violates any of the provisions of this part commits an offense and its liable on conviction to a fine exceeding N50,000,000.00
(6) A body corporate that violates any of the provisions of this part commits an offence and is liable on conviction to a fine not exceeding 10% of the turnover of the body corporate in the business year preceding the date of the commission of the offence.
(7) Each director of the body corporate referred to I subsection (6) shall be liable to be proceeded against and on conviction dealt with as specified in subsection (5).
Retention of accounting and costing records by suppliers or distributors
91.(1) Any undertaking that supplies or distributes regulated goods or services shall retain all accounting and costing records on the regulated goods or services as the commission may specify either in relation to supplier or distributors of those goods or services generally or in relation to a particular supplier or distributor of the goods or services.
(2) Any undertaking that supplies or distributes regulated goods or services shall retain the records referred to in subsection (1) for a period of three years from the date of the revocation or expiry of the order in respect of the regulated goods or services to which they relate.
PART XII – MERGERS
(a) a merger occurs when one or more undertakings directly or indirectly or indirectly acquire or establish client or indirect control over the whole or part of the business of another undertaking; and
(b) a merger contemplated in paragraph (a) of this subsection may be achieved in any manner, including through –
(i) the purchase or lease of the shares, an interest or assets of the other undertaking in question,
(ii) the amalgamation or other combination with the other undertaking in question, or
(iii) a joint venture
(2) For the purposes of subsection (1) an undertaking has control over the business of another undertaking if it –
(a) beneficially owns more than one half of the issued share capital or assets of the undertaking;
(b) Is entitled to cast a majority of the votes that may be cast at a general meeting of the undertaking or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that undertaking;
(d) is a holding company, and the undertaking is a subsidiary of the company as contemplated under the companies and Allied Matters Act..
(e) in the case of an undertaking that is a trust, has the ability to control the majority of the trustees or to appoint or change the majority of the beneficiaries of the trusts;
(f) has the ability to materially influence the policy of the undertaking in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control referred to I paragraphs (a) to (f)
(3) For the purpose of subsection (1) an undertaking shall not be deemed to exercise control over the business of another undertaking where –
(a) credit institutions or other financial institutions or insurance companies, the normal activities of which includes transactions and dealing in securities for their own account or for the account of others, hold on a temporary basis securities which they have acquired in an undertaking with a view to reselling them, provided that they do not exercise voting rights in respect of those securities with a view to determining that competitive behaviour of that undertaking or provided that they exercise such voting rights only with a view to preparing the disposal of all or part of that undertaking or of its assets or the disposal of those securities and that any such disposal takes place within one year of the date of acquisition; that period may be extended by the commission on request where such institutions or companies can show that the disposal was not reasonably possible within the period set; or
(b) control is acquired by an office –holder according to the laws of the Federation relating to liquidation, winding up, insolvency, cessation of payments, compositions or analogous proceedings.
(4) For the purpose of this Act –
(a) a “small merger” means a merger with a value at or below the threshold stipulated by the commission by regulation; and
(b) a “large merger” means a merger with a value above the threshold stipulated by the commission by regulations.
Commission to approve mergers
(2) The commission shall, by regulations, determine –
(a) a threshold of annual turnover for the purpose of determining the categories of mergers contemplated under section 92 (4) of this act;
(b) a method for the calculation of annual turnover to be applied in relation to the threshold determined under paragraphs (a)
(3) Prior to making a determination contemplated in subsection (2), the commission shall publish in the Federal Gazette, a notice –
(a) Setting out the proposed threshold and method of calculation for purposes of this section; and
(b) Inviting written submissions on that proposal
(4) Within 60 days after publishing a notice as required under subsection (3), the commission shall publish, in the Federal Gazette, a notice setting out –
(a) the threshold and method of calculation for the purposes of this sections; and
(b) the effective date of the threshold.
Consideration by the Commission of effect of a merger on completion
94(1) When considering a merger or a proposed merger, the commission shall –
(a) determine whether or not the merger is likely to substantially prevent or lessen competition, by assessing the factors set out in subsection (2)
(b) if it appears that the merger is likely to substantially prevent or lessen competition, then determine –
(i) whether or not the merger is likely to result in any technological efficiency or other pro – competitive gain which will be greater than and off set or is likely to result from the merge, and would not likely be obtained if the merger is prevented, and
(ii) whether the merger can or cannot be justified on substantial public interest grounds by assisting the factors set out in subsection (3);
(c) Otherwise, determine whether the merger can or cannot be justified on substantial public interest grounds by assessing the factors set out in subsection (3).
(2) When determining whether or not a merger or a proposed merger is likely to substantially prevent or lessen competition, the commission shall asses the strength of competition in the relevant market and the probability that the undertakings in the market, after the merger, will behave competitively or co operatively, taking into account any factor that is relevant to the competition in that market, including –
(a) the actual and potential level of import competition in the market;
(b) the ease of entry into the market, including tariff and regulatory barriers;
(c) the level and trends of concentration, and history of collusion in the market;
(d) the degree of countervailing power in the market;
(e) the dynamic characteristics of the market, ,including growth, innovation and product differentiation
(f) the nature and extent of vertical integration in the market;
(g) whether the business or part of the business of a party to the merger or proposed merger has failed or is likely to fail; and
(h) whether the merger or proposed merger will result in the removal of an effective competitor
(3) Where it appears that a merger or proposed merger is likely to substantially prevent or lessen competition, the commission shall determine –
(a) whether or not the merger or proposed merger is likely to result in any technological efficiency or other pro – competitive advantage which will be greater than, and offset, the effects of any prevention or lessening of competition, while allowing consumers a fair share of the resulting benefits; and
(b) Whether the merger or proposed merger can or cannot be justified on substantial public interest grounds by assessing the factors set out in subsection (4)
(4) When determining whether a merger or proposed merger can or cannot be justified on grounds of public interest, the commission shall consider the effect that the merger or proposed merger will have on –
(a) a particular industrial sector or region;
(c) the ability of national industries to compete in international markets; and
(d) the ability of small and medium scale enterprises to become competitive.
Notification requirements for a small merger
95(1) A party to a small merger –
(a) is not required to notify the commission of that merger unless the Commission requires it to do in accordance with the provision of subsection (3); and
(b) may implement that merger without approval, unless it is required to notify the commission in accordance with the provisions of subsection (3).
(2) A party to a small merger may voluntarily notify the commission of that merger at any time.
(3) Within six months after a small merger is implemented, the commission may require the parties to that merger to notify in the prescribed manner, and form if, in the opinion of the commission, having regard to the provisions of the section, the merger may substantially prevent or lessen competition.
(4) The notification of the merger referred to in subsection (3) shall be published within five business days after receipt by the Commission.
(5) A party to a merger to which subsection (4) applies may take no further steps to implement that merger until the merger has been approved by the commission with or without conditions.
(6) Within 20 business days after parties to a small merger have fulfilled the notification requirement referred to in subsection (3), the Commission may extend the period in which it has to consider the merger by a single period not exceeding 40 business days and, in that case, the commission shall –
(a) issue an extension notice to any party who notified it of the merger; or
(b) after having considered the merger as required under this section, issue a report in the prescribed form –
(i) approving the merger,
(ii) approving the merger subject to any conditions;
(iii) prohibiting implementation of the merger, if it has not been implemented, or
(iv) declaring the merger to be prohibited.
(7) Where, upon the expiry of the 20 business days provided for in subsection (6), the commission has not issued the extension notice referred to in subsection (6) (a) or upon the expiry of an extension period referred to in the subsection, the commission has not issued a report referred to in the subsection (6) (b), the merger shall be deemed to have approved.
(8) The commission shall –
(a) publish a notice of any decision it makes pursuant to this section in the Federal Government Gazette; and
(b) issue written reasons for the decision if –
(i) it prohibits or conditionally approves a merger, or
(ii) requested to do so by a party to a merger.
Notification of large merger
96(1) A party to a large merger shall notify the commission of the merger in the prescribed manner and form
(2) The notification of the merger referred to un subsection (1) shall be published within five business days after receipt by the commission.
(3) The primary acquiring undertaking and the primary target undertaking shall each provide a copy of the notice contemplated in subsection (1) to –
(a) any registered trade union that represents the employee in the acquiring and target undertaking respectively; or
(b) the employee or representatives of the employee of the acquiring and target undertakings, if there are no such registered trade unions.
(4) The parties to a large merger shall not implement that merger unless approved, with or without conditions, by the commission in accordance with the provisions of this Act.
(5) Any action undertaken by any party in violation of the provisions of subsection (4) is void.
(6) The commission may exercise any of the powers available to it under this Act to render void any violation of the provisions of subsection (3)
(7) An undertaking that violates the provision of subsection (4) commits an offence and is liable on conviction to a fine not exceeding 10% of turnover of the undertaking in the business year preceding the date of the commission of the offence or to such other percentage as the court may determine having regard to the circumstances of the case.
Power of the Commission to extend the period of consideration of a larger merger
97(1) Within 60 business days after the parties to a large merger have fulfilled all notification requirements referred to in section 96 of this Act, the commission –
(a) may extend the period in which it has to consider the proposed merger to 120 business days and issue an extension notice to all parties to the merger; or
(b) after having considered the merger in accordance with the provisions of this Act, issue a report in the prescribed form –
(i) approving the merger
(ii) approving the merger subject to condition, or
(iii) prohibiting implementation of the merger
(2) Where upon the expiry of the 60 business day period provided for in subsection (1), the commission has not issued an extension notice as provided for in that subsection or, upon the expiry of an extension period contemplated in subsection (1) (a), the commission has not issued a report referred to in subsection (1) (b), the merger shall be regarded as having been approved, subject to the provision of section 99 of this Act.
(3) Subject to the provisions of this part, the commission shall –
(a) give to the parties applying for approval of a large merger its decision and cause a notice of the decision to be published in at least two national newspaper; and
(b) issue written reasons for its decision where –
(i) it prohibits or conditionally approves the merger, or
(ii) it is requested to do so by a party to merger.
Investigation of proposed merger
Revocation of merger approval
(a) the decision was based on incorrect information for which a party to the merger is responsible;
(b) the approval was obtained by deceit;
(c) the parties fail to implement the merger within 12 months after the approval was granted; or
(d) an undertaking concerned has breached an obligation attached to the decision of the Commission approving the merger.
(2) Where the Commission revokes its decision approving a merger under subsection (1), it may prohibit that merger even though any time limit set out under the relevant provision of this Part may have elapsed and the merger was approved on account of the failure of the commission to reach a decision within the period prescribed under this Act.
Powers of the Minister
100(1) The minister is entitled to make representations on any public interest ground indicated in section 94 (4) to the commission with respect to any merger which is under consideration by the commission.
(2) Subject to the overriding objectives of this Act, the Commission shall have special regard to the representations made by the Minister on and public interest ground indicated in section 94 (4) in arriving at the decision on a merger notification.
(3) Further to the provisions of subsection (1) and (2), the Minister may participate as an observer in any merger proceeding before the Commission in the prescribed manner.
Power to hear persons in merger proceedings.
101(1) In making a determination in respect of a merger notification, the commission may bear any person, other than parties to the merger, who, in the opinion of the commission, is able to assist in making a determination or the merger notification.
(2) Before making a determination in relation to a merger or a proposed merger, the commission may decide to hold a hearing publicly or in private and shall appoint a date, time and place for holding the hearing and give notice of the date, time and place so appointed and of the matters to be considered at the bearing to the persons entitled to be present at the hearing.
Provisions of documentations on proposed merger to the Commission
102(1) Any undertaking making a merger notification shall furnish to the Commission such documents, and information as may be required in the consideration of the merger or proposed merger to enable the commission exercise their functions under this Act.
(2) Any undertaking hat has given notice in respect of a merger of a merger or proposed merger may, at any time by in writing to the Commission, advise the Commission that it does not wish to proceed with the implementation of the merger and the commission shall not give a decision on the notification.