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N1.40trn fine: Court refuses to revoke MTN’s operating licence

By Ikechukwu Nnochiri
ABUJA – The Federal High Court in Abuja, on Friday, declined to compel MTN Nigeria Communications Limited to pay into the federation account the total sum of N1.40trillion, being the fine that was imposed on it by the Nigerian Communications Commission, NCC.

MTN-Office

The court equally refused to issue an order of mandamus to compel NCC to perform its statutory obligation under section 45(1) (a) (b) and (c) of the Nigeria Communications Act, by revoking MTN’s operation license, pending when it paid the fine.

In a judgment that was delivered by Justice Babatunde Quadri, the court dismissed the suit marked FHC/ABJ/CS/448/2016, which queried powers of the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN, and the Minister of Communications Technology, Adebayo Shittu to reduce the fine imposed on MTN to N780billion.

The suit was filed before the court by a member of the House of Representatives, Hon. Raphael Igbokwe and Mr. Emmanuel Njoku, who told the court that they acted on behalf of ‘Nigerians Against Exploitation By Telecommunications Operators’.

Cited as defendants were the NCC, MTN Nigeria Communications Ltd, the AGF and the Minister of Communication Technology.

Specifically, the plaintiffs through their lawyer, Mr. Okere Kingdom, prayed the court to among other things, determine “Whether or not the Minister of Justice/Attorney General of the Federation and the Minister of Communications Technology have powers to amend, alter, adjust or vary any provisions of a delegated legislation or any other law validly made by the National Assembly, or any rules, regulations and orders validly made by any delegated legislature pursuant to an Act of the National Assembly.

“Whether or not the National Assembly of Nigeria or any Arm of the National Assembly has the constitutional powers to constitute an investigative panel and to summon any government official, to inquire into the circumstances surrounding the alteration, variation and reduction of the fine lawfully imposed on MTN Nigeria Communications Ltd by NCC, which fine was imposed pursuant to delegated powers conferred on the NCC by an Act of the National Assembly.

“Whether or not MTN Nigeria Communications Ltd has breached section 146(1) and (2) of the NCC Act and sections 19(1) and 20 (1) and (2) of the NCC (Registration of Telephone Subscribers Regulations) 2011, by intentionally and willfully failing to disconnect and register all unregistered subscribers on its network as stipulated in the Act”.

The 1st plaintiff, Hon. Igbokwe, in 12-paragraphed affidavit he deposed to in support of the suit, told the court that the House of Reps had by a motion moved by Hon. Ehiozuwa Johnson captioned ‘need to investigate the payment made by MTN on the fine levied by the NCC’, constituted a committee to investigate issues, circumstances and motives behind “the huge reduction of the N1.40trillion fine imposed on MTN.

He maintained that controversies surrounding the reduction of the fine was a matter of public interest for which Nigerians deserved to know, adding that both Malami and Shittu refused to appear before the House of Reps investigative committee, “thereby denying Nigerians opportunity to know the said circumstances and rationale leading to the reduction of the fine”.

Meanwhile, all the defendants challenged the competence of the suit, contending that the plaintiffs lacked the locus standi to institute the action.

The NCC, through its lawyer, Chief Wole Olanipekun, SAN, urged the court to dismiss the suit on the ground that the plaintiffs’ reliefs did not disclose any personal or proprietary rights vested in them that was violated by the defendants.

All the defendants argued that the suit was statute barred, noting that 30 days had elapsed before the plaintiffs approached the court to challenge the fine they said was reduced since 2015.

In his judgment, Justice Quadri upheld preliminary objections the defendants filed against the suit.

The court held that the plaintiffs did not fulfil necessary condition precedents before the suit was filed.

It held that they failed to exhaust all other remedies that were provided in sections 86, 87 and 88 of the NCC Act and Order 34 of the Federal High Court (Civil Procedure) Rules.

According to the judge, the plaintiffs ought to have applied for statement of reason from the NCC, request for a review of the decison of the commission within 30 days, and specify the reasons why they wanted MTN to be compelled to pay the fine in full.

Justice Quadri said it was only after the conditions are fulfiled that the plaintiffs could apply to court for a judicial review of the decision.


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