Nigerian Competition Authorities Utilise Dawn Raids as Effective Enforcement Tool

The Federal Competition and Consumer Protection Commission (“FCCPC” or “Commission”) of Nigeria recently carried out dawn raids in the freight-forwarding sector, in a move which clearly announces itself as the new investigative kid on the block.

While dawn raids (or search and seizure) operations are well known as effective investigative tools, the resources required to carry out such raids and the importance of following due process when doing so, requires a sophisticated and objective agency.

Dawn raids are by their very nature an extreme invasion or privacy and therefore guarding against the abuse of such operations is of paramount importance. In this regard, Nigeria’s Federal Competition and Consumer Protection Commission (FCCPC) is very much aware of its responsibilities in this regard. Having received training from the United States Federal Trade Commission on how to carry out dawn raids, the FCCPC is very much aware of the risks associated with not following the proper procedural process in conducting search and seizure operations.

An important starting point (common in most established competition regimes) is that it is only in extremely limited instances that a dawn raid could be conducted without a warrant. The starting point therefore is that the FCCPC must obtain a warrant not only authorising the raid, but also setting out the scope of such investigation (this is particularly important in order to ascertain what documents/evidence falls outside the scope of the search and seizure warrant). Prior to applying for a warrant, the FCCPC internally adopts a robust mechanism to ensure that the evidence relied upon to apply for a search warrant is credible.

While the FCCPC will invariably seize all hardcopy documents that may be relevant to its investigation, it will also seize all electronic records (usually be making a mirror copy of all electronic devices including computers and cellphones – including private phones). Parties have the right to challenge the relevance of evidence seized. Documents which are covered by legal privilege are certainly to be excluded from the evidence seized or considered by the FCCPC but documents which fall beyond the scope of the warrant could also be challenged.

Although the FCCPC remains cautious in its approach to competition enforcement (so as not to dampen pro-competitive conduct), the agency is clearly a sufficiently well resourced, technically competent and driven agency willing to dedicate the necessary resources to investigating anti-competitive practices.

Firms operating in Nigeria should ensure that they have a clear internal policy in place should the agencies decide to pay them a visit. Key considerations in this regard include understanding rights to remain silent; ensuring an accurate assessment of the evidence seized is recorded and ensuring all employees understand what their rights and obligations are.