Section 167 Federal Competition and Consumer Protection Act 2018
Section 167 of the Federal Competition and Consumer Protection Act 2018 is about Interpretation. It is under Part XVIII (Miscellaneous Provisions) of the Act.
(1) In this Act-
“acquiring undertaking” means an undertaking that –
(a) as a result of a merger within the meaning of section 93 of this Act would directly or indirectly acquire, or establish, direct or indirect control over the whole or part of the business of another undertaking; or
(b) as a result of a merger within the meaning of section 93 of this Act has direct or indirect control over the whole or part of the business of an undertaking referred to in paragraph
(a).
“Act” means the Federal Competition and Consumer Protection Act, 2017;
“agent” means a person who is authorised to act for another person (“the principal”) through employment or by contract, whether express or implied;
“agreement” includes a contract, arrangement, understanding, written or oral, and a concerted practice;
“authorised officer” means any person appointed as such by the Commission for the purposes of implementation of the provisions of this Act;
“business” includes any activity that is carried on for gain or reward, or in the course of which goods or services are acquired or supplied or any interest in land is acquired or disposed of, otherwise than free of charge;
“business secret” means trade, business or industrial information that belongs to a person which has a particular economic value and is not generally available to or known by others;
“close corporation” means a corporation whose shares are not publicly traded and are held by a limited number of persons;
“Code of Conduct” means a set of moral principles or rules of conduct or behavior drawn up by the Commission for the Commission, its employee and a person acting through the authority of the Commission;
“company” includes any entity registered under the Nigeria Companies and Allied Matters Act or the laws of any other country;
“complainant” means a person who initiates a complaint;
“Commission” means the Federal Competition and Consumer Protection Commission established under section 3 (1) of this Act;
“concerted practice” means a practice involving direct or indirect contacts between competitors falling short of an actual agreement;
“consumer” includes any person –
(a) who purchases or offers to purchase goods otherwise than for the purpose of resale but does not include a person who purchases any goods for the purpose of using them in the production or manufacture of any other goods or articles for sale; or
(b) to whom a service is rendered;
”court” means the Court of Appeal;
“dealer” means a person who buys goods or services for resale;
“document” means a document in any form, whether signed or otherwise authenticated by its maker or not, and includes any-
(a) writing on any material;
(e) information recorded or stored by means of any taperecorder, computer, or other device, and any material subsequently derived from information so recorded or stored;
(c) label, marking, or other writing that identifies or describes anything of which it forms pmi, or to which it is attached by any means;
(d) book, map, plan, graph, or drawing; and
(e) photograph, film, negative, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced;
“enterprise” means any person involved in business;
“exclusive dealing” means any practice whereby an undertaking as a condition of-
(a) supplying goods and services to a customer-
(i) requires the customer to deal only or primarily in goods or services supplied or designed by undertaking or its
nominee, or refrain from dealing in a specified class or kind of goods or services, except as supplied by the
undertaking or its nominee, or
(ii) induces a customer to meet such condition by offering to supply goods or supply goods or services to the customer on more favourable terms or conditions if the customer agrees to meet that condition;
(b) purchasing a specified class or kind of goods or services from a supplier, requires the supplier to refrain from supplying the same class or kind of goods or services to other undertakings
“Executive Chairman” means the Executive Chairman ofthe Commission;
“Executive Vice-Chairman” means the Chief Executive of the Commission;
“Federal” refers to the Federal Republic of Nigeria;
“function” includes powers and duties;
“give effect to”, in relation to a provision of a contract, arrangement or understanding, includes:
(a) doing an act in pursuance of, or in accordance with, that provision; and
(b) enforcement or purport to enforce that provision;
“goods”-
(a) when used with respect to particular goods, includes any other goods that are reasonably capable of being substituted for them, taking into account ordinary commercial practice and geographical, technical and temporal constraints;
(b) includes –
(i) ship, aircraft, and vehicles,
(ii) minerals, trees and crops, whether on, under, or attached to land or not,
(iii) gas and electricity;
“Government of the Federation” means the Federal, States and any of the Local Governments of the Federation;
“judge” means Judge of the Court of Appeal;
“members of the Commission” means the Executive Chairman and the Commissioners of the Commission;
“merger” means a transaction falling under the definition of section 93 of this Act;
“Minister” means, unless otherwise stated, the Minister responsible for trade matters;
“President” means the President and Commander-in-Chief of the Armed Forces of the Federal Republic ofNigeria;
“person”, includes any natural or legal person, “Yvhether incorporated or not;
“prescribed” means prescribed by regulations under this Act or by the Commission;
“price” includes any-
(a) charge or fee or valuable consideration m any form, whether direct or indirect; and
(b) consideration that in effect relates to the acquisition or supply of goods or services or the acquisition or disposition of any interest in land, although ostensibly relating to any other matter or thing;
“principal” means a person who authorises or empowers another person to act as its representative or agent;
“productsn includes goods or services
“Public Service Rules” means the version of the Public Service Rules currently in force;
“respondent” means a person against whom a complaint is made;
“restrictive practices” means practices in restraint of trade or which otherwise hinder competition;
“retailer” means a person who sells goods or services to consumers;
“repealed enactment” includes sections 118, 119, 120, 121, 122, 123, 124: 125, 126, 127 and 128 of the Investments and Securities Act, Cap. 124 Laws of the Federation of Nigeria, 2004 and the Consumer Protection Council Act Cap. C25 Laws of the Federation of Nigeria, 2004;
“service” includes-
(a) a service of any description, whether industrial, trade, professional or any other service; and
(b) the sale of goods, where the goods are sold in conjunction with the rendering of a service;
“sale” includes advertisement for sale, display for sale, and offer for sale, and
“sell”,;
“selling”, and “sold” have corresponding meanings;
“share” means a share in the share capital of a company or other body corporate, whether or not it carries the right to vote at general meetings, and includes-
(a) a beneficial interest in any such share;
(b) a power to exercise, or control the exercise of, a right to vote attaching to any such share that carries the right to vote at meetings of the company;
(c) a power to acquire or dispose of, or control the acquisition or disposition of, any such share; and
(d) a perpetual debenture and perpetual debenture stock;
“State office” means an official position, division or agency of a Local, State or Federal Government;
“supplier” means a person who supplies goods or services to another person;
“supply”, in relation to-
(a) goods, includes supply, or re-supply by way of gift, sale, exchange, rent, lease, hire, or hire purchase; and
(b) services, includes provide, grant, or confer and “supply” as a nmm, and “supplied” have corresponding meanings;
“target undertaking” means an undertaking, which as a result of a merger within the meaning of section 93 of this Act-
(a) the whole or part of whose business would be directly or indirectly controlled by an acquiring undertaking; or
(b) would directly or indirectly transfer control of the whole or part of, its business to an acquiring undertaking;
“turnover” means the amount of money taken by the business in a determined period;
“trade” includes any business, industry, profession, occupation, activity of commerce or undertaking relating to the supply or acquisition of goods or services or to the disposition or acquisition of any interest in land;
“Tribunal” means the Competition and Consmner Protection Tribunal established under section 3 9 (1) of this Act;
“undertaking” includes any person involved in the production of, or the trade in, goods, or the provision of services;
(2) In this Act, a reference to “engaging in conduct” shall be read as a reference to doing or refusing to do any act, including the entering into, or the giving effect to a provision of, a contract or arrangement.
(3) In this Act –
(a) a reference to the “acquisition of goods” includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;
(b) a reference to “the supply or acquisition of goods or services” includes a reference to agreeing to supply or
acquire goods or services;
(c) a reference to “the supply or acquisition of goods” includes a reference to the supply or acquisition of goods together with other property or services or both; and
(d) a reference to “the supply or acquisition of services” includes a reference to the supply or acquisition of services together with property or other services or both.
(4) For the purpose of this Act, any two undertakings or associations of undertakings are to be treated as affiliated if-
(a) one of them is an undertaking of which the other is a subsidiary, as the subsidiary is understood under the
provisions of the Companies and Allied Matters Act, Cap. C20, Laws of the Federation of Nigeria, 2004;
(b) both of them are subsidiaries (within the meaning of those sections) of the same undertaking; or
(c) both of them are affiliated with undertakings that, in accordance with paragraph (a) or (b) of this subsection, are affiliated.
(5) In this Act, 11 competition 11 means workable or effective competition in relation to the supply and demand of goods or services in any given market and unless the context otherwise requires, references to the lessening of competition include references to the hindering or preventing of competition.
(6) For the purpose of this Act, the effect on competition in a market shall be determined by reference to all factors that affect competition in that market, including competition from goods or services supplied or likely to be supplied by undertakings not resident or not carrying on business in Nigeria.
(7) For the purpose of this Act-
(a) a provision of a contract or arrangement shall be deemed to have had, or to have, a particular purpose; if-
(i) the provision was or is included in the contract or arrangement or is required to be given, for that purpose or purposes that included or include that purpose, and
(ii) that purpose was or is a substantial purpose;
(b) a person is deemed to have engaged, or to engage, in conduct for a particular purpose or a particular reason if that person engaged or engages in that conduct for that purpose or reason or for purposes or reasons that included or include that purpose or reason, and that purpose or reason was or is a substantial purpose or reason.
(8) In this Act, a reference to-
(a) a contract shall be construed as including a reference to a lease of, or a license in respect of, any land or a building or part of a building, and shall be so construed notwithstanding any express reference in this Act to the lease or licence, but does not mean a reference to the memorandum of association or articles of association of a company;
(b) making or entering into a contract, in relation to a lease or licence, shall be read as a reference to granting or taking the lease or licecse; and
(c) a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.
(9) For the purposes of this Act, any contract or arrangement entered into by an association or body is deemed to have been entered into by all the persons or undertakings who are members of the association or body;
(10) Nothing in subsection (9) shall apply to any member of an association or body who-
(a) expressly notifies the association or body in writing that he disassociates himself from the contract, or arrangement or any provision thereof;
(b) establishes that he had no knowledge and could not reasonably have been expected to have had knowledge of the contract, arrangement, or understanding.
(11) In this Act, a reference to –
(a) Federal Government means the Federal Government of the Federal Republic of Nigeria;
(b) State Government means the Government of any of the States that constitute the territories of the Federal Republic of Nigeria, as recognised by the Constitution of the Federal Republic of Nigeria, 1999
(12) Every reference in this Act to the term, “market” is a reference to a relevant market in Nigeria for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them and the meaning of the term relevant market shall be based on examination of demand substitutability, supply substitutability and potential competition.
(13) For the purpose of this Act, the term –
(a) “regulatory agency” means any Government agency established to regulate the terms and conditions for demand and supply of goods and services in any given industry and in this respect, the regulatory agency in question is one established either by the Federal or State Government;
(b) “regulated industry” means an industry which is designated as such by the Commission and which is under the regulatory authority of a regulatory agency.
(14) For the purpose of this Act, the term, “professional associations” means the professional associations mentioned in the First Schedule to this Act.
