THE ADMINISTRATIVE TRIBUNAL AND ITS QUASI JUDICIAL POWERS: AN APPRAISAL OF THE RECENT DECISION OF THE FCCPC TRIBUNAL IN NIGERIAN BOTTLING COMPANY LIMITED & ANOR V FCCPC

BRIEF SUMMARY OF FACTS

Pursuant to its statutory routine market surveillance mandate in June 2019, the Federal Competition and Consumer Protection Commission (“the Commission”) discovered that Coca-Cola Nigeria Limited and the Nigerian Bottling Company, (“the Companies”) who are the producers, marketers and distributors of the Coca-Cola products in Nigeria had introduced a new variant of their Coca-Cola (“Coke”) drink, called the Coke Original Taste – Less Sugar (“Coke Less Sugar”) to the Nigerian market. The Commission alleged that from its findings, the “Coke less sugar” was dissimilar in ingredients, as its formulation contains non-nutritive sweeteners as against regular sugar and also the nutritional value from the original coke, but deceptively bottled the new variant in the same identical packaging as the Coke Original. According to the Commission, the only distinguishing factor on the packaging and label design of the new variant is the inclusion of the phrase “Less Sugar” in an inconspicuous manner after the words “Original Taste”.

Fast forward to September 2019, the Commission carried out a market survey and allegedly also discovered that the Limca lemon-lime flavoured drink appeared to have two variants which are not distinguished. In the Commission’s view, the products taste different, with different ingredients and nutritional value but were packaged in identical bottles, with identical brand design and the same National Agency for Food and Drug Administration and Control (NAFDAC) registration numbers.[1]

Upon conclusion of its investigation, the Commission issued a report with the alleged conclusion that the labelling, packaging and branding of Coca-Cola products by the Companies were misleading to the Nigerian consumers in violation of Sections 17(g), 116(1),(2),(3), 123(1), 124 of the Federal Competition and Consumer Protection Act (FCCPA). The Commission alleged that the Companies provided misleading and/or false information to it in violation of Section 112 of the FCCPA. The Commission thereafter communicated its investigative report to the Companies and availed them an opportunity to respond to the report.[2] Upon consideration of the Companies’ response, the Commission via an Order and Notice dated 29^th July 2024, made declaratory orders against the Companies. In further exercise of its powers, the Commission slammed a fine of N190,000,000 (One Hundred and Ninety Million Naira only) on the Companies.

Further to the above, the Companies appealed against this fine before the Competition and Consumer Protection Tribunal (“the Tribunal”). At the Tribunal, the parties argued their respective cases, with filing of Final Written Addresses, and subsequently, the Tribunal reserved its Judgement. On the 28^th day of April 2025, scheduled for delivery of the Tribunal’s Judgement, parties informed the Tribunal that they had reached a settlement on the dispute and consequently urged the Tribunal to enter the parties’ Terms of Settlement as Consent Judgment. However, the Tribunal rejected the parties’ application, and proceeded instead, to deliver a judgment upholding the Commission’s fine of N190,000,000 (One Hundred and Ninety Million Naira only) on the Companies while mandating the latter to pay the same within 60 days. In its Judgment, the Tribunal held in the main, that the filing of Terms of Settlement by the parties after Judgment had been reserved amounted to an attempt to arrest the judgment, which according to the Tribunal, is a practice unknown to the Nigerian law. The Tribunal went further to state that the parties’ settlement undermined the Commission’s regulatory authority as well as the Tribunal’s constitutional responsibility to the public.[3]

Upon our review of the Tribunal’s decision, the following legal questions agitate the mind, to wit:

a.    What is the propriety or otherwise of the Tribunal’s total disregard of the Terms of Settlement voluntarily entered into between the parties and in the exercise of their respective contractual rights?

b.    Does the settlement of the dispute between the parties in the circumstance, undermine the Commission’s authority as a regulator of the Companies and the Tribunal’s constitutional responsibility to the public?

c.     What are the solutions open to the Companies?

The above questions set the tone of this discourse and will be exhaustively considered having particular recourse to the provisions of the FCCPA, 2018 and settled positions of the law.

A.   WHAT IS THE PROPRIETY OR OTHERWISE OF THE TRIBUNAL’S TOTAL DISREGARD OF THE SETTLEMENT VOLUNTARILY ENTERED INTO BETWEEN THE PARTIES AND IN THE EXERCISE OF THEIR RESPECTIVE CONTRACTUAL RIGHTS?

Preliminarily, it is imperative to consider the powers and jurisdiction of the Tribunal under the FCCPA, 2018. Section 47(1) of the FCCPA spells out the jurisdiction of the Tribunal. It provides thus:

The Tribunal shall have power to-

(a)  hear appeals from or review any decision of the Commission taken in the course of the implementation of any of the provisions of this Act as may be referred to it;

(b)  hear appeals from or review, any decision from the exercise of the powers of   any sector of specific regulatory authority in a regulated industry in respect of competition and consumer protection matters;

(c)   issue such orders as may be required of it under this Act; and

(d)  make any ruling or such other orders as may be necessary or incidental to the performance of its functions under this Act.

In addition to the above, the Tribunal is a quasi-judicial body mandated to adopt judicial approach and comply with the basic requirements of justice in its proceedings and conclusions.[4] Apposite to the issue of discourse is Section 41(1)(a) of FCCPA, 2018, the invocation of which allowed the Tribunal to uphold the Commission’s N190,000,000 (One Hundred and Ninety Million Naira only) fine against the Companies. However, it is pertinent to note that the Tribunal upheld the Commission’s “arbitrarily” imposed penalty despite the existence of a settlement agreement where parties agreed of their volition to a revised penalty. The reasoning of the Tribunal for its decision is that an adoption of the settlement agreement as Consent Judgement after the adoption of the parties’ Final Written Addresses amounts to an attempt to arrest the reserved Judgement, a practice that is not recognized under the Nigerian law.

We however, beg to disagree with the Tribunal’s position. Our considered view is that the Tribunal’s reasoning was reached in error, in the face of settled principles of the Nigerian law, because where parties submit to the jurisdiction of a Court/Tribunal for the determination of their legal rights, it is not uncommon for parties to reach a settlement agreement before the Court/Tribunal delivers its judgment on the issue(s) submitted before it by the parties for determination and the Court/Tribunal is ordinarily enjoined to promote amicable settlement parties’ dispute where practicable. Consequently, where settlement is reached, the Court/Tribunal is generally inclined to recognise the settlement of parties, as it is a reflection of the parties’ autonomy and willingness to resolve their disputes amicably. This, in our view, also speaks to parties’ right to contract as well as the privity of contract. However, it is important to note that for the Court/Tribunal to accept the parties’ terms of settlement, it must be satisfied that the settlement agreement is not void, inoperative or incapable of being clothed with judicial recognition. Additionally, the agreement must not be contrary to public policy or obtained through fraud or duress and it must be in line with the issues and claims of the parties before it.

Furthermore, the settlement of the dispute in a case pending before a Court/Tribunal is consensual as it proceeds from an agreement by the parties to settle on their own terms. Due to its consensual nature, the agreement embodied in the Terms of Settlement creates new rights between the parties that supersedes the original cause of action. This is because settlement between parties is a contract wherein new rights are created between them in substitution for, and in consideration of the abandonment of the original claim (s) pending before the Court/Tribunal.[5] Instructive to this position is the holding of the Supreme Court per Uwaifo, J.S.C. in Abey vs. Alex[6] where the apex Court stated as follows

“…where the parties settle or compromise pending proceedings, whether before, at or during the trial, the settlement or compromise constitutes a new and independent agreement between them made for good consideration… its effects are:

(a)  to put an end to the proceedings, for they are spent and exhausted;

(b)  to preclude the parties from taking any further steps in the action, except where they have provided for liberty to apply to enforce the agreed terms; and

(c)   to supersede the original cause of action altogether, that is to say, the terms of settlement or compromise must henceforth regulate the relationship and entitlement of the parties in regard to the subject matter”

The voluntary consensus ad idem between the parties, which created and brought into existence, a legally binding and enforceable agreement or contract between them in law, the role of the Court/Tribunal or an adjudicatory body is solely limited to giving effect to the agreements of the parties.[7] Rather interestingly, the implication of a settlement agreement superseding the original cause of action is that the Court/Tribunal has no further jurisdiction in respect of the original cause of action which has been so superseded.[8] The only jurisdiction, which the Court/Tribunal has in the circumstance would be to accept the terms of the parties’ settlement of their dispute and consequently enforce the same.

Premised on the foregoing, it is our well considered view, that, the Tribunal ought to have recognised the terms of the parties’ settlement. The Tribunal was not minded that the action before it entirely affects the parties and since the same parties have now entered into a separate agreement, one that supersedes the original cause of action, it ought to take cognisance of the same, notwithstanding the time and industry that went into writing its judgement. In Star Paper Mill Ltd & Anor v. Bashiru Adetunji & Ors[9], the Supreme Court per Muntaka Commassie, JSC succinctly held thus at page 659:

“It must be pointed out that it is one of the cordial principles of our judicial system to allow parties to amicably resolve the disputes between them. By doing so, the otherwise hostile relationship between the parties would be amicably resolved and cemented”

The non-recognition of the terms of settlement as a judgment of the Court does not, in law, render it less valid; it operates as the current agreement that binds parties notwithstanding the fact that it lacks the imprimatur of the Court.

Moreover, the principle of arresting a judgment refers to the hostile and mala fide approach by a party to tie the hands of a Court/Tribunal from delivering judgment in a matter to the detriment of the other party. Notably, the conduct is often founded in bad faith to the displeasure of another party. Unlike in the instant case, where the parties were ad idem on the Terms of Settlement. The parties were of their respective volition to contract and create a new legal relationship in relation to the dispute between them. Clearly there was no bad faith neither did either of the parties oppose the same as being prejudicial to its interest.

The Tribunal’s dismissal of the terms of settlement/compromise agreement entered into by the parties on the ground that the adoption of the same will amount to an arrest of judgement is clearly erroneous and lacks support in law.

B.   DOES THE SETTLEMENT OF THE DISPUTE BETWEEN THE PARTIES IN THE CIRCUMSTANCE, UNDERMINE THE COMMISSION’S AUTHORITY AS A REGULATOR OF THE COMPANIES AND THE TRIBUNAL’S CONSTITUTIONAL RESPONSIBILITY TO THE PUBLIC?

Our answer to the above poser is in the negative. In circumstances where the Commission enters into terms of settlement or a compromise agreement with a company as in this extant case, it does not inherently undermine its authority as a regulator, as such action is legally recognised as part of the regulatory toolkit to ensure compliance and efficient resolution of disputes involving the Commission.

By the extant provisions of Sections 17 & 18 of the FCCP, 2018 the Commission is mandated to carry out investigations or inquiries considered necessary or desirable in connection with any matter within its statutory purview[10] and in furtherance of this, resolve disputes or complaints, issue directives and apply sanctions where necessary.[11]  Incidental to these functions is the leeway to enter into compromise agreement with any erring regulated entity. It is elementary that settlement reduced into compromise agreement has loads of advantages and hence why it is incidental to the role of any regulator who should not be rigid and set itself out as a persecutor. Some ways in which it is incidental are as follows:

1.    Settlement offers a more expedient way to resolve disputes. Instead of lengthy litigation taking tolls on time, a mutually agreed-upon solution can be reached faster, and this equally allows the regulator to focus on other areas of oversight.

2.    As against a binary outcome (i.e guilty/not guilty or liable/not liable) and potential sanctions, settlement allows for tailored solutions that address the specific circumstance of the dispute.

3.    Settlement puts the regulator in a good light and fosters a more cooperative relationship between the regulator and regulated entities.

4.    Settlement focuses on remediation and future compliance rather than outright punishment.

Thus, it is our considered position, that entering into compromise agreement with any erring regulated entity does not in any way undermine the Commission’s statutory authority as a regulator instead it shows the flexible nature of the Commission as a regulator interested in its core mandate and not one that draconianly imposes fines for the purpose of revenue generation. This posture of the Commission in amicably resolving disputes would also increase compliance among regulated entities.

In the same vein, the act of adopting or entering judgment upon mutually agreed terms of settlement between parties does not, by any stretch of the imagination, derogate from the Tribunal’s overarching responsibility to the public. On the contrary, such a course of action is fully in consonance with the Tribunal’s primary judicial obligation namely: to render a fair, impartial, and dispassionate adjudication of disputes that have been voluntarily submitted to its jurisdiction.

It is trite that dispute resolution is fundamentally party-driven, and where parties have freely and unequivocally submitted to the jurisdiction of the Court/Tribunal to determine their rights, but subsequently chose to new set of settlement terms, creating a contract between the parties, the Court/Tribunal is duty-bound to respect the sanctity of the parties’ agreement, provided always that such terms do not offend public policy or the express provisions of extant law as stated above.

Furthermore, the Tribunal in the instant case is not an inquisitorial body vested with a roving mandate to superimpose its will over consensual arrangements validly entered into by competent parties. Its role, rather, is to give judicial imprimatur to such negotiated settlements where they do not subvert the ends of justice, offend public interest, or defeat the spirit and letters of the enabling statute. Accordingly, it is our maintained position, that the Tribunal’s decision in the circumstance to adopt and pronounce judgment upon such terms of settlement of the parties, is entirely within the bounds of its adjudicatory discretion and does not, in any manner whatsoever, diminish its responsibility to the public or its statutory mandate to uphold justice.

CONCLUSION

Pertinent to conclude on this note that the decision of a Court or tribunal of competent jurisdiction remains binding, subsisting, and enforceable until it is either set aside on appeal or vacated by the tribunal itself in appropriate circumstances. A unilateral disregard of a final judgment, notwithstanding the existence of a compromise agreement or negotiated terms between the parties, is legally untenable. The Commission, being the statutory regulator, retains full legal authority to enforce the judgment of the Tribunal pursuant to its powers under the enabling Act, irrespective of any extrajudicial compromise or post-judgment settlement. Consequently, unless and until the judgment is formally vacated, reviewed, or overturned on appeal, it continues to subsist and bind all parties. Any departure from or non-compliance with the Tribunal’s judgment in favour of extra-curial settlements, without obtaining a formal variation or stay from the appellate court, would amount to a flagrant disregard of the authority of the Tribunal, and may expose the non-complying party to the risk of coercive enforcement proceedings.

Thus, it is strongly advised that either of the parties dissatisfied with the Tribunal’s judgment should seek redress by way of an appeal in accordance with the extant procedural rules governing appellate review, rather than act on the mistaken presumption that a private compromise can override or neutralize a binding judicial pronouncement. For an appeal, Section 55(1) of the FCCPA dictates that any party to a proceeding who is not satisfied with a ruling, award or judgment of the Tribunal may appeal to the Court of Appeal within 30 days after the date on which the ruling, award or judgment was given.

Please note that the foregoing does not in any way constitute legal advice. Kindly contact the authors for any legal advice on the subject matter