The Wireless Application Service Providers Association of Nigeria (WASPAN) has appealed a Federal High Court judgement upholding the authority of the Federal Competition and Consumer Protection Commission (FCCPC) to regulate digital lending in Nigeria.
In a notice of appeal dated 21 July, a day after the Federal High Court in Lagos delivered the judgement, WASPAN asked the Court of Appeal in Lagos to set aside the judgement delivered by the lower court judge Ambrose Allagoa on Monday, which dismissed the association’s suit challenging the FCCPC’s Digital, Electronic, Online or Non-Traditional Consumer Lending (DEON) Regulations, 2025.
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The appeal was filed by WASPAN’s legal team led by Kemi Pinheiro, a Senior Advocate of Nigeria (SAN).
WASPAN put together nine grounds of appeal, arguing that the Federal High Court misinterpreted key provisions of the Federal Competition and Consumer Protection Act (FCCPA), 2018, and wrongly upheld the FCCPC’s regulatory authority over operators in the telecommunications sector.
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The association is asking the Court of Appeal to allow the appeal, set aside the lower court judgement and grant the prayers in its originating summons filed on 14 April.
It has also filed a motion seeking an injunction restraining the FCCPC from enforcing the DEON Regulations pending the hearing and determination of the appeal.
The appeal followed WASPAN’s unsuccessful challenge to the regulations before the Federal High Court.
WASPAN had asked the court to declare the DEON Regulations ultra vires the FCCPC’s powers, arguing that the commission could not regulate matters within the telecommunications sector in view of the Nigerian Communications Act, 2003.
The association maintained that the Nigerian Communications Commission (NCC), as the sector-specific regulator, had statutory responsibility for promoting fair competition and protecting consumers in the telecommunications industry.
The FCCPC opposed the suit, arguing that it was incompetent because WASPAN had failed to comply with the statutory pre-action notice requirement before filing the case.
The commission also argued that the suit disclosed no reasonable cause of action.
Mr Allagoa rejected the preliminary objection, holding that the suit disclosed a reasonable cause of action and that WASPAN had served a pre-action notice on the FCCPC.
The judge also held that WASPAN had acted under a genuine fear and that, because the case concerned the interpretation of legislation rather than a claim for damages, any failure to comply with the pre-action notice requirement did not deprive the court of jurisdiction.
The court therefore proceeded to determine the substantive dispute.
On that issue, however, the court dismissed WASPAN’s case.
Mr Allagoa held that Sections 104, 105, 106 and 163 of the FCCPA empowered the FCCPC to investigate anti-competitive conduct, protect consumers and make regulations within its statutory mandate.
The court also held that there was no conflict between the FCCPA and the Nigerian Communications Act.
It held that the FCCPC was responsible for competition and consumer protection matters, while the NCC remained responsible for licensing companies in the telecommunications sector.
The court further declared that the FCCPC lacked the power to issue telecommunications licences but found that nothing in the DEON Regulations created a telecommunications licensing regime.
The court consequently noted that the regulations were not beyond the FCCPC’s statutory powers and dismissed WASPAN’s originating summons.
Following the judgement, the FCCPC announced that it had resumed implementing and enforcing the DEON Regulations.
The commission explained that the court had dismissed WASPAN’s suit in its entirety, rejected the reliefs sought by the association, upheld the validity of the regulations and discharged an interim ex parte order that had previously restrained their implementation and enforcement.
The FCCPC stressed that the discharge of the order removed the legal obstacle that had temporarily halted enforcement of the regulations.
Its Director of Corporate Affairs, Ondaje Ijagwu, stated that the commission would continue to carry out its regulatory responsibilities in accordance with 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 and delivered judgment in favour of the Commission, we will continue to discharge our statutory responsibilities faithfully, professionally and in accordance with the law.”
The FCCPC revealed that the regulations were intended to promote responsible lending, strengthen regulatory accountability, curb unfair and exploitative practices and improve consumer protection in Nigeria’s growing digital lending market.
WASPAN’s appeal, however, challenges the legal basis of the Federal High Court’s decision.
A central issue in the appeal is the relationship between the FCCPC’s general mandate on competition and consumer protection and the specific regulatory powers of the NCC.
WASPAN argued that Section 90 of the Nigerian Communications Act expressly gives the NCC responsibility for promoting fair competition and protecting consumers in the telecommunications sector.
It therefore contended that the FCCPC’s powers must give way to the specialised regulatory framework established for the telecommunications industry.
The association also challenged the Federal High Court’s interpretation of Section 2(1) of the FCCPA.
It argued that the court wrongly treated the law as applying across the entire economy without giving sufficient effect to the phrase, “as may be indicated otherwise.”
WASPAN further argued that Section 163 of the FCCPA does not give the FCCPC unlimited power to make regulations governing every form of commercial activity.
According to the association, the commission’s regulation-making powers are limited to matters contemplated by the FCCPA and do not extend to the DEON Consumer Lending Regulations in the manner challenged by WASPAN.
The association also challenged Paragraph 7 of the DEON Regulations, which requires businesses covered by the regulations to obtain FCCPC approval before engaging in consumer lending services.
WASPAN argued that the requirement effectively gives the FCCPC licensing powers over businesses operating in the telecommunications sector, despite the statutory powers vested in the NCC.
READ ALSO: FCCPC resumes digital lending regulations as court upholds powers
The association said the Federal High Court’s judgement was internally inconsistent because the court held that the FCCPC could not take over the statutory functions of the NCC and lacked licensing powers, but nevertheless dismissed the suit.
Having reached that conclusion, WASPAN argued, the court ought to have declared Paragraph 7 of the DEON Regulations ultra vires, null and void.
The association also faulted the court’s reliance on Section 104 of the FCCPA, arguing that the provision could not be interpreted as overriding the sector-specific regulatory framework established under the Nigerian Communications Act.
WASPAN maintained that where a specific law and a general law regulate the same subject matter, the specific legislation prevails to the extent of any inconsistency.
The appeal also raises constitutional issues.
WASPAN argued that the DEON Regulations interfere with its members’ freedom of association and contractual autonomy guaranteed under Section 40 of the Nigerian Constitution.
It maintained that its members have the right to associate freely and choose the intermediaries and service providers with whom they wish to collaborate.
The association argued that such rights cannot be restricted by subsidiary legislation without clear statutory authority.
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