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2.3GHz saga:How court upheld NCC’s statutory rights

The federal High Court Abuja, headed by  Justice Umar Garba, Thursday last week, cleared the air on the lingering saga of 2.3Ghz licensing round conducted by the Nigerian Communications Communications, in April 2009, and was later in May 25 2009 cancelled by the former Minister of Information and Communications, Prof. Dora Akunyili, on the ground that the process was not transparent.

Piqued by cancellation, one of the winners of the license, Mobitel Nigeria Ltd went to court, seeking judicial review and clarifications whether the minister was right to cancel a licensing round by NCC .

The judgement of the court came at the right time considering that the frequency was needed to deploy services that can take the Nigerian telecoms sector to the next level of innovations in the global market.

Besides, the judgement, may have provided the much clamoured independence of the regulator in an economy that needs a faster telecom development to achieve targets, as it seperates the powers of the Minister from the duties of the Regulator.

Because the judgement is itself an interesting chronicle of what has transpired since the licensing round in April 2009, Vanguard Cyberlife decided to serve you, our readers, the court pronouncement, unedited. We hope you will enjoy it:
“In the case instituted by Mobitel against the Minister of Information and Communications, the NFMC, NCC, in the case of purported cancellation of the 2.3GHZ sale, I hold therefore that the respondent’s objections have no merit and it must fail. Consequently, all objections of the first and second defendants have no merit and are hereby dismissed.

Having seen all the preliminary objections, I now proceed to consider the sustentative application of the matter before this court.

Pursuant to leave granted to the applicant by this court on the 27th of May 2009 to apply for an order for a judicial review, the applicant filed an originating motion on the 1st of June 2009 and same was supported by a written address. The first second and third respondents filed written addresses. The third respondent initially appeared at the proceedings and subsequently disappeared. I hereby treat all processes filed by the third respondent as being abandoned and I do hold.

Having looked then at all the preliminary applications now, I proceed to consider the substantive application of this matter before the court.

I have adopted all the written addresses on the 25th of January 2010. I have read all the submissions of the Counsels and I have equally gone through the statements of facts filled by the applicants the relief sought and all the exhibits attached to the application, I hereby adopt the single and sole issue formulated by the applicant in this case for determination which is a follows:

-Whether it is within the powers of the first and second respondents to cancel an auction conducted by the 4th Respondent for the issuance of license in the communications sector.

-The applicant’s case as taken clearly from the facts in the statements and supporting affidavits is that the applicant participated in the auction of the 2.3GHz spectrum licensing by the fourth respondent (NCC) and met all the  criteria as advertised, awaiting the issuance of the license to operate.

When the first and second respondent issued a letter on the 25th of May 2009 ‘ Exhibit NCC’ and Exhibit ‘N’, the contents of these exhibits state as follows and I quote”

“ Following the resolution of the Ministerial management Meeting on Friday the 22nd of May 2009 on the above subject matter, I am directed to formerly convey the resolution of the meeting that the process of the sale of the 2.3GHz Band has been cancelled, it should start all over again. As a result of that, you are to await the formal release of the band by the National Frequency Management Council. The meeting of which was expected to hold on Tuesday, May 26, 2009 at 12.00 noon. Signed for the Honourable Minister”.

Aggrieved by the above decision the applicant ran to this court and applied for judicial review.
The Nigerian Communications Act 2003 is the law providing for the allocation of frequency. The law conferred on the Nigerian Communications Commission, the sole and exclusive powers to manage and administer the frequency spectrum for the communications sector to its end users by grants of license for the use of the said frequencies. See section 121, (1) &( 2) of the Act which provides and I quote:

“Notwithstanding the provisions of any other written law or subject to the provision of this Act, the Commission shall have the sole and exclusive power  to manage and administer the frequency spectrum for the communications sector and in that regard to grant licenses for and to regulate the use of the said frequency spectrum
Section 121, (2) states and I quote”

“The Power of the Minister under the Wireless Telegraphy Act as far as they relate to the Communications are hereby vested in the Commission”

By the Provisions of the Nigerian Communications Act 2003, the Commission is independent of any interference in the performance of its statutory duties. The purpose is to insulate the Commission in the performance of this crucial and highly sensitive function of regulating the Communications sector.

The end user for the purpose of the function of the Commission is the operators in the communications sector. Section 157 of the interpretation clause in the Nigerian Communications Act 2003 defines the Communications Sector in the following words and I quote

“ An economic sector or market for network service, for an application service or for goods and services used in conjunction with network service or an application or service for or access to facility used in conjunction within either a network service or an application service.”

Other government bodies recognized by the NCA 2003 are the Minister of Communications and National Frequency Management Council who are not provided for in Part 1 of the Nigerian Communication Act 2003 regarding the frequency spectrum of the Communications sector within the provisions of the Act.

From the foregoing, it is my holding that the Act confers NO power in the first respondent (Minister of Communications) to impose any directive or instruction on the Commission, or any of its officers or intervene in the performance of the Commissions functions. It is clear that the express intentions of the Act regarding the role of the first respondent is to limit its powers to only board matters on policy  and issues that affect treaties in view of section 23 of the Nigerian Communications Act.

Section 25, sub-section 2 goes further to impose on the Minister of Communications the statutory obligation of ensuring the sanctity of the independence guaranteed to the Commission by the Act.

The first respondent’s (Minister of Communications) purported cancellation of the Auction is absolutory and totally arbitrary as it relates to section 123 of the Nigerian Communication Act 2003 which provides for as follows and I quote:

‘Section 123 (1)
“the Commission may make regulations in any matter under this chapter. Section 123 (2), the regulation may include procedure for assignment of spectrum such as but not limited to the following a) Auctions; b) Tender; c) Fixed price to be determined by the  Commission

The above provision gives the Commission the exclusive powers regarding the sale of frequency and makes absolutely no mention of the first respondent (Minister of Communications)

Therefore action of the first respondent ( Minister of Communications) in cancelling the auction is a violation of due operation of the law which everyone is bound by.

See the case of Ogboru Vs Ibori in 2005 where it was held by the courts that in the construction of statutory provision where a statute mentions specific things or persons, the intention are that those not mentioned are not intended to be included.

This is the ‘esperatio unius’  rule which means  the expression, mention of one of the things in a statutory provision automatically excludes any other which otherwise will have been included by implications.

The first respondent is the Chairman of the National Frequency Management Council created by section 26 of the NCC Act 2003. The body is comprised of 8 Members. No member is accorded with a prerogative to any unilateral action regarding the actions of the Commission as was exercised by the first and second respondent in the letter dated the 25th of May 2009 (Exhibit NCC 5 and Exhibit N to the first respondent.

The Courts being a creation of the law are saddled with the constitutional duty and responsibility to enforce and guard against the vice by ensuring adherence to the tenets of the law. The courts will therefore continue to function to constrain any government department through the instrument of prerogative writs where such department exceeds the limits of the powers conferred on them by the law.

Where the law provides for the ways and methods of doing an act, only that method will be allowed in doing such an act. Anything done otherwise is ultra vires.

Having procured and obtained bids, that is in accordance with the terms advertised; the first respondent cannot stop and cancel same by a letter dated the 25th of May 2009 without a valid reason.

The Act is an Act from the National Assembly which must be accorded respect. The applicant which has complied with all the requirements in the exercise of the auctions and bids and acquired publicly and advertised right cannot be disregarded by a mere administrative directive without the backing of the law. See the Case of M.H Wun Vs Minister of Labour and Productivity recorded in 2005 17 Nigerian Weekly report 953.

Furthermore, by the provisions of the NCA 2003, it is not open to anyone and not even the Minister of Communications, the first respondent in this case, to question the assigning of frequencies to the third parties by the Commission where the Commission is performing its functions under Chapter 8 part 1 of the Act.

The Commission is hereby deemed by the Act to perform this function for and on behalf of the National Frequency Management Council. The Act does not contemplate otherwise to the extent that no authority will void an auction of frequency by the Commission.

The only remedy for the Act of  the first and Second respondent which is not backed by law is to declare same ultra vires. See the Case of UNTHME Vs Nolly recorded in 1992. C-i-C of Armed Forces Vs Public Service of Mid Western region of Nigeria and another recorded in 1974.

And the Case of Lagos State Vs Eko Hotels recorded in 2005.
The first respondent like any other citizen of this country had the opportunity to comment on the auction sale before the applicant herein and others expended a very huge sum of money in the acquisition of the license (a colossal sum of N1,378,000) on the basis of the first pay first serve for the issuance of the license for the national frequencies in the 2.3Ghz to acquire the license.

Therefore the first defendant having stood by and allowed the Commission and the users to participate in the auction of the 2.3GHz Wimax spectrum frequencies in accordance with the law and due process, it is too late in the day for the NFMC or even the first respondent who has no powers to do so under the Act to truncate the application of the Chapter 8, Part 1 of the Act dealing with assignment of frequencies.

The respondents are stopped from denying the absolute validity of the auction exercise by which the applicant acquired the right of a slot in the 2.3GHz Wimax frequency spectrum.

Before I conclude, it is pertinent to mention that it is not in dispute that the body of the applicants case is that letter dated 25th May 2009 by the first and second respondents. The argument by the first and second respondent that this is not a proper case for the application for an order is untenable from all the reasons I have advanced above. I hold that Exhibit NCC5 and Exhibit N which is the letter of the 25th May 2009 and Exhibit N which is the decision of same having been exhibited by the applicant and the first and second defendants.

Consequently, judgment is hereby entered to the applicant and I hereby grant all the relief sought by the applicant in the case. This is the judgment of this court.

– All the relief sought by the plaintiff are hereby granted, and to the applicant in this case, the respondent should release for the applicant the 2.3GHz license.


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