•Pits Osun State against MTN, Globacom,  Airtel

•We’re not owing Osun State a dime, says MTN

•Osun should come clean –Subscribers

By Prince Osuagwu, Hi-Tech Editor

Telecom companies, telcos in the country are consistently crying that part of the reasons they are not upgrading services and as well move into new areas is mainly the difficulties in getting Right of Way permission from many states of the federation.

Right of Way, RoW is a permission given to a telco by a federal, state or local government to dig up the roads and install telecommunications hardware such as optic fibre cables that carry internet traffic.

 According to the telcos, where they are able to even access such permission, they are made to pay excessive charges and also face high handed enforcement practices. The telcos say in most cases, they are always made to bear the brunt of states on overdrive to increase internally generated revenues, IGR.

At a recent stakeholders meeting in Lagos, Chairman of Association of Licensed Telecom Operators in Nigeria, ALTON, Engr Gbenga Adebayo called on the federal government to rein in states who were making it look like the telcos are their only source of generating revenues outside federal allocations.

Despite ALTON’s position, the condition may still linger, longer than expected. At the moment, the telecom sector is battling one of the outrageous cases of right of Way, RoW disputes that, if nothing is done urgently to quell it the quality of service woes the subscribers have been facing for several months now, may worsen.

Available information at Vanguard’s disposal shows that Osun State government is spoiling for war with MTN and other telcos over alleged humongous right of way debts. In a letter sighted by Vanguard, Osun State via a letter dated 19th April 2024 from the Special Adviser on legal matters to the Governor, demanded for the payment of N945,000,000 as Right of Way (RoW) fees for 270KMs of fibre optic and a penalty fee of N100,000,000 for the alleged non-payment of RoW.

The state also went further to petition the telco and others including Globacom and Airtel to the regulator, the Nigerian Communications Commission, NCC.

However, in a detailed response to the NCC, MTN narrated the process of acquiring Right of Way access from Osun state, through an existing agreement with O’odua Infraco,  licensee of the NCC to provide and operate an open access fibre infrastructure network in south-western Nigeria; which also executed a ‘Right of Way & Easement Agreement’ dated 6th March 2023 with the Osun State Government.

Part of the letter sighted by Vanguard stated that: “In a letter dated May 17th, 2024, the Commission notified MTN Nigeria Communications Plc (MTNN) of a complaint received from the Osun State Ministry of Environment and Sanitation. The complaint alleges that MTNN withheld information from the state government and lacks the necessary approval for its telecommunications infrastructure in Osun State. Thus, the Commission had directed MTNN to submit its comments on the allegation.

MTNN wishes to unequivocally state that it has consistently provided complete information to the government and its various agencies regarding this matter. We have diligently responded to all inquiries and actively engaged in discussions with the state, aiming to reach an amicable resolution. We have provided in considerable detail below, a comprehensive overview of the correspondence and engagements on this matter between MTNN and the Osun State Government, including its ministries, agencies, consultants and concessionaires, and we thank the Commission for its patience in considering same.

“O’odua Infraco is licensed by the Commission to provide and operate an open access fibre infrastructure network in south-western Nigeria. Accordingly, O’odua Infraco executed a Right of Way & Easement Agreement dated 6th March 2023 with the Osun State Government which was signed by the Executive Governor of Osun State, granting O’odua Infraco with the right of way and easement to construct, reconstruct, operate, maintain, repair, replace and remove open access broadband infrastructure for development of high-speed telecommunication on the portion of the land governed by the Osun State Government”.

“Although MTNN and O’odua Infraco Resources Limited (O’odua Infraco) executed an Indefeasible Right-of-Use (IRU) Agreement on 22nd September 2022 for MTNN’s use of 1031.44 kilometers of O’odua Infraco’s fibre duct infrastructure across Four states’ (Osun, Oyo, Ondo and Ekiti States), this agreement was executed subject to each state’s confirmation of its No Objection to O’odua Infraco’s lease of the fibre ducts as provided for in Clause 6.14 of the IRU agreement.

“At the time MTNN entered into the IRU Agreement, MTNN was informed that negotiations were ongoing between O’odua Infraco and some of the states, including Osun State, regarding the issuance of Right of Way (RoW) approval to O’odua Infraco. This confirmation of Osun State’s no objection to the lease of the fibre ducts by O’odua Infraco was issued by the Osun State Ministry of Innovation, Science and Technology (the Ministry) via a “No Objection” letter dated 15th March 2023 (Annexure 3) granting O’odua Infraco’s request to lease its duct and fibre to interested telecommunications operators.

“MTNN’s business relationship with Osun State, through O’odua Infraco, was seamless until MTNN received a letter dated 14th September 2023 from Global Transaction Nigeria Limited (GTNL) introducing itself and informing us of its appointment as Technical Consultant to the Osun State Ministry of Environment on telecommunications infrastructure within the state (Annexure 4). GTNL also informed MTNN that it had been tasked by the Osun State Government to coordinate telecommunications infrastructure pursuant to the Osun State Environmental Protection Law 2022, including the inspection, audit and monitoring of installations within the state to ensure compliance with the environmental laws and safety standards in order to protect the people of Osun State.

“Subsequently, by a letter dated 15th December 2023 (Annexure 5), GTNL notified MTNN of an ongoing investigation of O’odua Infraco’s activities in Osun State, alleging that O’odua Infraco did not have any legal right to lay fibre optic cables within Osun State and requested for a meeting with MTNN. At this meeting, GTNL informed MTNN that there was a plan to terminate O’odua Infraco’s Right of Way and Easement Agreement with Osun State owing to O’odua Infraco’s alleged breach of its terms of appointment, non-remittance of fees to Osun State’s account, contravention of the Osun State Environmental Law, and illegal award of right-of-way to telecommunications operators including MTNN.

“In view of this discussion, MTNN, via a letter dated 16th January 2024 sought a response from O’odua Infraco regarding GTNL’s allegations. O’odua Infraco responded via a letter dated 20th January 2024, countering GNTL’s allegations and insisting that its Right of Way and Easement Agreement with Osun State Government was still subsisting.

“Subsequently MTNN received a letter dated 31st January 2024 from the Office of the Attorney General of Osun State and the Commissioner for Justice (Annexure 8) which accused MTNN of illegally laying fibre cables in the state without complying with due process. The Attorney General’s office stated that GTNL is the government and court appointed Technical Consultant vested with the responsibility of ensuring the integrity of telecommunications infrastructure in Osun State … pursuant to the judgment of the Osun State High Court delivered on 28th September 2023.

“Additionally, the Attorney General’s office also requested that MTNN furnish it with the details of its cables within Osun State and pay all fees relating to its fibre cable to GTNL, inclusive of the fees it had previously paid to O’odua Infraco. We have attached a copy of the Certified True Copy of the said judgement for the Commission’s information as Annexure 9.

“It is pertinent to highlight that the matter referred to by the Attorney General’s Office was instituted in October 2018 with judgment delivered thereon on 28th September 2023. The date of the judgment’s delivery was over one  year after MTN had entered into the agreement with O’odua Infraco (IRU agreement was executed by parties on 22nd September 2022) and several months after the “No Objection” letter dated 15th March 2023 was issued by the Osun State Ministry of Innovation, Science and Technology to O’odua Infraco.

“A few days after MTNN’s receipt of the letter from the Office of the Attorney General, MTNN was made aware by O’odua Infraco that it received a letter from the Office of the Osun State Attorney General dated 1st February 2024 which purportedly terminated the Right of Way and Easement Agreement between the Osun State Government and O’odua Infraco. A second letter was sent by GTNL to O’odua Infraco dated 12th February 2024 whereby it was stated that Osun State decided in 2022 to exercise its regulatory powers over telecommunications infrastructure through the State’s Ministry of Environment & Sanitation, further to which GTNL was appointed. GTNL also claimed that the Osun State Government was misled and deceived to execute the purported agreement with O’odua Infraco for the purpose of internet provision and that O’odua Infraco is selling/leasing telecommunications infrastructure to 3rd Parties under the guise of directing RoW fees that should be legitimately earned by the Osun State Government away”.

MTN’s position is that there is no understating the N1,045,000,000 (One Billion and Forty-Five Million Naira that the Osun State Government seeks to obtain from it for RoW Fees and Penalty is inconsiderable, especially after it has already made the relevant payment to O’odua Infraco as required by the terms of the IRU agreement between both parties.

The telco said it is deeply concerned by the Osun State Government’s use of executive authority in ways that appear arbitrary and detrimental to corporate entities.

Corroborating MTN, ALTON Chairman Engr Adebayo said that after going through claims and counter claims of the two parties, it was clear Osun State’s position was not untenable. He said the state’s actions are against the wheel of progress and was capable of impeding the installation and enhancement of critical development infrastructure, which would ultimately benefit the citizens and residents of the state.

Also, the President of National Association of telecom subscribers of Nigeria, NATCOMs, Chief Deolu Ogubanjo frowned at the development calling for immediate truce, because according to him, “when these two elephants fight, it is we the subscribers that will suffer. Osun state should come clean in this issue for easy resolution so subscribers do not go through worse conditions than they are suffering at the moment “ he added