WASPAN takes FCCPC to Court of Appeal over digital lending powers

The Wireless Application Service Providers Association of Nigeria (WASPAN) has gone to the Court of Appeal. This follows a Federal High Court ruling that backed the Federal Competition and Consumer Protection Commission (FCCPC) in regulating digital lending in Nigeria.

In a notice of appeal dated 21 July, WASPAN asked the Court of Appeal in Lagos to overturn the judgement made by Justice Ambrose Allagoa. This judgement was delivered on Monday, and it dismissed WASPAN’s case against the FCCPC’s Digital, Electronic, Online or Non-Traditional Consumer Lending (DEON) Regulations, 2025.

WASPAN's legal team, led by Kemi Pinheiro, a Senior Advocate of Nigeria (SAN), filed the appeal.

The association raised nine points in its appeal. They claimed that the Federal High Court misunderstood important parts of the Federal Competition and Consumer Protection Act (FCCPA), 2018. They argued that the court wrongly supported the FCCPC’s authority over telecommunications operators.

WASPAN is asking the Court of Appeal to accept their appeal, cancel the lower court's decision, and grant the requests in their original application submitted on 14 April. They have also requested a motion to stop the FCCPC from enforcing the DEON Regulations while their appeal is ongoing.

This appeal comes after WASPAN’s earlier unsuccessful attempt in the Federal High Court to challenge the regulations. WASPAN argued that the DEON Regulations were beyond the FCCPC’s powers. They stated that the FCCPC could not regulate issues in the telecommunications sector, according to the Nigerian Communications Act, 2003.

WASPAN insisted that the Nigerian Communications Commission (NCC) is the specific regulator responsible for ensuring fair competition and protecting consumers in the telecommunications industry.

The FCCPC opposed WASPAN’s case. They claimed that the case was not valid because WASPAN did not meet the legal requirement for a pre-action notice before filing. They also argued that the case did not show any reasonable grounds for action.

Justice Allagoa rejected this initial objection. He said the case did provide reasonable grounds for action and that WASPAN had served the necessary pre-action notice on the FCCPC. The judge noted that WASPAN acted out of genuine concern. He also stated that since the case was about interpreting laws and not claiming damages, failing to comply with the pre-action notice did not stop the court from hearing the case.

The court then moved on to address the main issues. In the end, the court dismissed WASPAN’s case. Justice Allagoa stated that Sections 104, 105, 106, and 163 of the FCCPA allow the FCCPC to look into anti-competitive actions, protect consumers, and make rules within its authority.

The court also said there was no clash between the FCCPA and the Nigerian Communications Act. It noted that the FCCPC is in charge of competition and consumer protection, while the NCC handles licensing in the telecommunications sector.

The court confirmed that the FCCPC cannot issue telecommunications licenses but found that the DEON Regulations did not create a licensing system. It concluded that the regulations were within the FCCPC’s legal powers and dismissed WASPAN’s original application.

After the ruling, the FCCPC announced that it would continue enforcing the DEON Regulations. The commission explained that the court dismissed all of WASPAN’s claims and upheld the validity of the regulations. They also lifted a previous court order that had stopped the regulations from being enforced.

The FCCPC emphasized that removing the order allowed them to resume enforcing the regulations. Ondaje Ijagwu, the Director of Corporate Affairs, said the commission would keep doing its regulatory work according to the law.

“When the Court issued its interim order, we immediately suspended implementation of the Regulations in full compliance with the Court’s directive,” Mr Ijagwu said. “Now that the Court has affirmed the validity of the DEON Regulations, we will continue our duties as required by law.”

The FCCPC stated that the regulations are meant to encourage responsible lending, increase accountability, prevent unfair practices, and improve consumer protection in Nigeria’s digital lending market.

WASPAN’s appeal challenges the legal basis of the Federal High Court’s ruling. A key point in the appeal is how the FCCPC’s general powers connect with the NCC’s specific regulatory authority.

WASPAN claimed that Section 90 of the Nigerian Communications Act gives the NCC the duty to ensure fair competition and protect consumers in the telecommunications industry. They argued that the FCCPC’s powers should not interfere with the specific regulations set for telecommunications.

The association also questioned how the Federal High Court understood Section 2(1) of the FCCPA. They said the court wrongly viewed the law as applying to the whole economy without considering the phrase, “as may be indicated otherwise.”

WASPAN further argued that Section 163 of the FCCPA does not give the FCCPC unlimited power to regulate all commercial activities. They said the commission's power is limited to matters stated in the FCCPA and does not cover the DEON Consumer Lending Regulations in the way WASPAN challenged.

The association also criticized Paragraph 7 of the DEON Regulations, which says businesses must get FCCPC approval to provide consumer lending services. WASPAN claimed this effectively gives the FCCPC licensing authority over telecommunications businesses, which should be under the NCC.

WASPAN said the Federal High Court’s ruling was inconsistent. The court said the FCCPC could not take over the NCC’s functions and lacked licensing authority, but still dismissed the case. They argued that the court should have declared Paragraph 7 of the DEON Regulations invalid.

The association also disagreed with the court’s use of Section 104 of the FCCPA, saying it should not be seen as overriding the specific regulations in the Nigerian Communications Act. They maintained that when specific and general laws deal with the same issue, the specific law should take precedence.

The appeal also raises constitutional questions. WASPAN claimed that the DEON Regulations interfere with their members' rights to associate and make contracts, as guaranteed by Section 40 of the Nigerian Constitution. They argued that their members should freely choose who to work with and that such rights cannot be limited by other laws without clear authority.