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Nigerian Court orders FCCPC to declare defendant wanted for prosecution

*Federal High Court sitting in Abuja orders the Federal Competition and Consumer Protection Commission make a public statement declaring Pamela Onyeagusi, 2nd defendant in a body modification procedure case, a fugitive and wanted for the purpose of apprehension to ‘appear in Court and answer to pending criminal charges’

Isola Moses | ConsumerConnect

A Federal High Court sitting in Abuja, FCT, has ordered the Federal Competition and Consumer Protection Commission (FCCPC) to publish a declaration that defendant in a body modification procedure case is a fugitive and wanted before the Nigerian court.

The regulatory Commission disclosed this development in a statement issued Monday, July 31, 2023.

Mr. Babatunde Irukera, Executive Vice-Chairman/Chief Executive Officer (EVC/CEO) disclosed the court order is pursuant to Sections 17(a), (e), (h), (l), (s), (t), (y), (z), 123(1), 125(1), 130(1)(b), 136 and 142(3) of the Federal Competition and Consumer Protection Act, 2018.

Irukera stated the Court sitting July 21, in Abuja in Federal Republic of Nigeria v Lotela Beauty Limited & Anor – Charge No: FHC/ABJ/CR/145/2023, ordered the Commission to make a public statement in furtherance of a determination and order of the Court declaring the 2nd Defendant (Pamela Onyeagusi) a fugitive and wanted for the purpose of apprehension, where found, and ultimate compulsion to appear in Court and answer to pending criminal charges.

Background to court case

The Commission noted it  received a complaint December 13, 2022, that the 2nd Defendant was conducting certain medical or quasi-medical/ cosmetic procedures otherwise known as body modifications and/or enhancements.

The 2nd Defendant operated this business at No. 6, Inuwa Wada Street, Utako, Abuja.

The subject of the Complainant’s dissatisfaction borders on bodily injuries inflicted on her with respect to services received from the 2nd Defendant.

In the course of the investigation, the Commission discovered that the 2nd Defendant was engaging in a range of cosmetic & beauty modification/enhancement services in the dining area of her residence, in which location she also had minors residing.

On account of the inappropriateness of the environment for such procedures and operations and apparent hazards associated with the setting, scope and nature of operations, the Commission sealed the premises.

The Commission’s investigation led to filing criminal charges for violations of the Federal Competition and Consumer Protection Act, 2018 (FCCPA) with respect to:

Making false, misleading or deceptive representations in violation of Sections 123 (1) and 125 (1) of the FCCPA;

Providing defective and/or unprofessional services in violation of Section 136 of the FCCPA.

Failure to comply with implied and objective standards of reasonable care and skill, contrary to Section 142 (3) of the FCCPA;

Failure to provide services in a manner and quality reasonably expected in violation of Section 130 (1) (b) of the FCCPA;

which offences are punishable under Section 155 of the FCCPA with monetary penalties and/or imprisonment.

On May 23, 2023, the Federal High Court issued a bench warrant to arrest and produce the 2nd Defendant before the Court.

Upon failure to appear in Court or fulfill the discretionary courtesy extended to the 2nd Defendant to appear in Court, the Court issued the instant order that is the subject of this statement declaring the 2nd Defendant wanted and directing the Commission to publish and disseminate the same. Accordingly, the general public, including and particularly law enforcement agencies have, and are being informed of this information in compliance with the order and directive of the Court.

The Commission reiterates and again invites targets or subjects of investigation of their obligations for compliance or cooperation (where applicable) in investigative, enforcement or judicial processes, regardless of the identity, societal standing, social class, profession or nature of the business of such persons, targets or entities that are subject of investigation.

The Courts have repeatedly in multiple, and an increasing line of cases affirmed and reinforced the jurisdiction, powers and duty of the Commission to investigate any conduct that is the subject of commerce, including all activities for reward or geared towards satisfaction of a demand from the public, or any person(s) including entities engaging or associated with such activities.

In Dr. Adepoju Anuoluwapo Olufunmilayo v FCCPC & Anor – Suit No: FHC/L/CS/540/2020, the Federal High Court expressly affirmed the question of whether the Commission can investigate competition or consumer protection issues associated with providing medical services when it agreed that Sections 1, 2 (a) – (f) and 15 of the Medical and Dental Practitioners Act, 2004 did not preclude or pre-empt the Commission from investigating a failed elective surgery with respect to the consumer protection aspect of it.

The Court also decided that the Commission’s exercise of its power to investigate does not violate fair hearing rights of subjects of investigation.

In Federal Republic of Nigeria v Dr. Adepoju Anuoluwapo Olufunmilayo & Anor – Charge No: FHC/L/CR/125C/2020, the Federal High Court in dismissing a challenge to the jurisdiction of the Court and the powers of the Commission to prosecute a medical doctor noted that the case is “… about the power to prosecute an offence created under the Act [FCCPA] and given the provisions of subsection 3, the Commission in my view has that power to prosecute.…”

In Federal Republic of Nigeria v Prince Ebeano Supermarket Ltd & Anor – Charge No: FHC/ABJ/CR/100/2020, in dismissing another challenge of the powers of the Commission to prosecute and the jurisdiction of the Commission, the Federal High Court noted that “… the concept of modern consumer protection law with competition laws cover a wide range of activities and same are contained in the FCCPA which in turn, are subsumed in the provisions of Section 251(1) (f) of the 1999 Constitution (as amended)….”

In Premiere Academy Limited v FCCPC & 2 Ors – Suit No: FHC/ABJ/CS/26/2022, the Federal High Court dismissed a claim by Premiere Academy and upheld the inherent powers, jurisdiction and mandate of the Commission under the FCCPA to investigate the broadest range of consumer protection issues irrespective of whether other components (such as criminal) of the legal process is implicated by the conduct that is subject of consumer dissatisfaction. Specifically, the Court dismissed Premiere’s argument that a Police investigation of a conduct necessarily preempts a regulatory investigation of the same conduct from the standpoint of consumer rights.

In the Coroner Inquest into the death of late Mrs. Adepeju Ugboma – COR/APO/003/2021, a Lagos State Coroner determined that “the FCCPC, a Commission set up to ensure the satisfaction and safety of Nigerian consumers is a legitimately interested party with respect to the death of a patient in a hospital, where there are allegations that consumer rights or standards were violated.”

The FCCPA, sundry laws, growing number of jurisprudence and globally prevailing practices consistently demonstrate the role of a consumer protection authority in any and every accountability framework for ensuring that rights of consumers are respected and receive compliance.

The Commission is committed to enforcing the law and again, invites persons who have become involved in the enforcement process to adopt a collaborative instead of an adversarial approach to compliance.

The Commission respects and encourages the prerogative and rights of persons subject of or implicated in any investigation to administratively and judicially disagree and challenge processes and outcomes, but reject any failure to comply that is inconsistent or not in accordance with processes authorised or endorsed by prevailing law.

Where such occur, the Commission will be forced to proceed in accordance with statutory tools to enforce compliance, including when such is adversarial.

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