NIGERIA Law and Practice Contributed by: Chiagozie Hilary-Nwokonko, Chukwuyere Ebere Izuogu and Priscilla Bidemi Ben-Okoh, Streamsowers & Köhn
FCCPC typically requires a letter of no objection from the relevant regulator before granting unconditional approval for the transaction. An exception applies to the financial services sector. Pursuant to the provisions of BOFIA, CBN has been vested with primary regulatory authority over competi - tion and consumer protection matters within the finan - cial services sector, including the review and approval of mergers involving financial institutions and other regulated financial service providers. Notwithstanding this statutory framework, the scope and exclusivity of the CBN’s mandate continue to generate regulatory and judicial debate, particularly following the decision of the Federal High Court in United Bank of Africa Plc v FCCPC (Unreported - FHC/ABJ/CS/1972/2025), where the court affirmed the powers of the FCCPC to investigate and enforce consumer protection matters within the financial services sector. However, the precise implications of the decision remain unsettled, particularly as regards whether the court’s reasoning extends beyond consumer protection to encompass competition law enforce - ment and, by extension, merger control and review within the financial services industry. Given that the jurisprudence in this area is still developing and may ultimately be clarified through appellate adjudication or legislative refinement, the extent of the FCCPC’s continuing jurisdiction in competition and consumer protection matters within the financial services sector has yet to be conclusively determined. Notification to the FCCPC is only required if the merg - er meets the jurisdictional threshold for notification. Under the FCCPA, a merger becomes notifiable to the FCCPC if it meets the criteria specified as constituting a relevant merger situation. According to paragraph 2.3 of the Merger Review Guidelines (MRG) issued by the FCCPC, a relevant merger situation is created where the following cumulative criteria are met: • two or more undertakings must come under com - mon control, or there must be arrangements in 2. Jurisdiction 2.1 Notification
progress or in contemplation which, if carried into effect, will lead to the undertakings coming under a common control to be distinct; and • either the Nigerian turnover in the preceding year of the undertaking that is being acquired exceeds the prescribed threshold or the combined value of the Nigerian element of the merging undertak - ings in the preceding year exceeds the prescribed threshold (known as the “turnover test”), as stipu - lated in the Notice of Threshold for Merger Notifi - cation 2019 (Threshold Regulations) issued by the FCCPC. If the FCCPC believes that the first criterion has not been met, it will not consider the second criterion, as a relevant merger situation is not created. In addition, where a Nigerian undertaking comes under the control of a foreign undertaking, the merger may be subject to notification if the turnover test under the Threshold Regulations is met or if the acquisition of the Nigerian undertaking affects the market structure by preventing or lessening competition in Nigeria. The standard used by the FCCPC to assess the juris - dictional threshold for mergers in the financial services sector is likely to be the same as the standard applied by the CBN when determining whether a relevant merger situation exists. In the communications sector, the following types of qualifying merger transactions are notifiable to NCC: • the acquisition of more than 10% of the shares of a communications licensee; • a transaction that results in a change of control of a communications licensee; and • a direct or indirect transfer or acquisition of an individual communications licence. 2.2 Failure to Notify Notifying a qualifying merger transaction is a legal requirement under Section 96 (7) of the FCCPA. Fail - ing to do so is considered an offence and may result in a fine of up to 10% of the parties’ turnover from the business year prior to the offence. The court may also determine a different percentage based on the case’s specific circumstances.
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