3rd May, 2022
By Taiye Agbaje
A lawyer, Festus Onifade, has disagreed with MultiChoice Nigeria Limited, the operator of DStv and Gotv, over the firm’s application challenging the jurisdiction of the tribunal in a suit filed against it.
Onifade and Coalition of Nigeria Consumers (CNC), in a counter-affidavit filed before a Federal Competition and Consumer Protection (FCCPC) Tribunal sitting in Abuja, described the prayers by MultiChoice as “incongruous.”
While Onifade and CNC are 1st and 2nd claimants, MultiChoice and Federal Competition and Consumer Protection Commission (FCCPC) are 1st and 2nd defendants respectively.
The company, in a motion on notice dated April 13 and filed April 14 by Toyin Pinheiro, SAN, prayed the three-member tribunal headed by Thomas Okosun for an order staying execution of the order it made on April 11 pending the determination of the instant application.
It also sought for an order setting aside and discharging the order the tribunal made on April 11 having been made without jurisdiction.
MultiChoice, which gave five grounds why its application should be considered, said the motion was brought pursuant to Section 39(1) and (2) and Section 47 of the Federal Competition and Consumer Protection (FCCP) Act 2018, and under the inherent jurisdiction of the tribunal.
The company said it filed an application on March 31 challenging the jurisdiction of the tribunal and that while the application was
pending and yet to be determined, “this honourable court made an order on the April 11, directing the applicant to maintain status-quo antebellum which in effect directs the applicant to comply with the order of the Tribunal of March 30.”
But in the counter affidavit, marked: CCPT/OP/1/2022, dated and filed April 26 by Onifade and CNC and deposed to by the lawyer, the claimants argued that the prayers in the application filed by the firm were similar to the one it earlier filed on March 31, “and know that both prayers are incongruous.”
The claimants argued that contrary to the submission by MultiChoice, the order made by the tribunal on April 11 was made pursuit to the inherent powers of the panel.
They said that the order of March 30 made by the tribunal in which the company was restrained from increasing its tariffs for the DStv and Gotv packages pending the hearing and determination of the suit predated the claim by the firm in its March 31 motion that “the act of increment is a complete act.”
“That contrary to Paragraph 5 of the affidavit in support of the motion on notice, the order of this Honourable Tribunal of April 11. asking parties to maintain status quo ante bellum was to protect and preserve the integrity of the tribunal.
“That contrary to Paragraphs 3 and 4 of the motion, there are two motions pending before the Tribunal namely; the motion dated April 13, and the motion on notice dated March 3, both seeking similar reliefs,” they argued.
In a written address attached to the counter affidavit, the claimants further argued that the order made by the tribunal on March 30 was to preserve the res (subject matter) pending the hearing and determination of the matter.
“Unfortunately, it is this res (the increase in price) that the 1st defendant/applicant (MultiChoice) had claimed in its motion on notice dated March 31 that it is a ‘Completed Act’.
“It is our opinion that where either of the parties take any steps or alter their position during the pendency of this motion, such party will be overreaching the tribunal/court or acting in contempt of the orders of the tribunal,” they said.
According to them, we submit rightfully that one of the fulcrums of the claimants’ case is the impending price hike.
“If the tribunal permits either of the parties to alter their position, there would be nothing left for the tribunal to determine.
“In the event that the tribunal holds that it has jurisdiction to hear and determine the matter, what will be left?” they asked.
The claimants said that the development would mean that the tribunal would be “acting in void because one of the subject matter of the suit would have been dissipated by the applicant (MultiChoice) even before the application on jurisdiction is determined.”
“We, therefore, submit that owing to the facts and circumstances of the present case, this Honourable Tribunal has rightfully, judicially and judiciously exercised its discretionary powers in the interest of justice by asking parties to maintain status quo ante bellum.
“This position will not only preserve the res, it also preserves the integrity of the Tribunal as the DOMINIS (umpire) in this suit,” they argued.
NAN reports that the tribunal had, on April 11, ordered MultiChoice to revert to old prices of its packages, which were alleged to have been increased on April 1, pending the hearing and determination of the substantive matter.
It then fixed May 5 for hearing of the matter.
The tribunal had, earlier on March 30, granted the ex-parte motion moved by Onifade, seeking for an order restraining the firm from increasing its services and other products on April 1, pending the hearing and determination of the motion on notice.
The company, on March 21, announced its intention to increase the subscription fees for its packages beginning from April 1, blaming inflation and business operations for the increment.