22nd January, 2016
Akin Kuponiyi
South Africa’s telecom giant, MTN must be up to some pranks as it seeks to jaw jaw with the Nigerian regulator, the NCC, while at the same time pursuing a legal remedy in court over the $3.9 billion fine imposed on it for not registering 5.2 million phone lines.
A Federal high court sitting in Lagos south west Nigeria heard MTN’s contradictory position today, before adjourning till 18 March 2016 for hearing a suit filed by MTN Nigeria Communications Limited against the Nigeria Communication Commission (NCC) over the N1.04trillion fine, imposed on the telecommunication company.
When the matter was mentioned today MTN’s lawyer, Chief Wole Olanipekun (SAN), told the court that parties are already discussing on how to resolve the matter out of court.
Consequently he asked for a sixty day period from the court to allow the parties hold further discussions.
However NCC’s lawyer, Yusuf Alli(SAN), disclosed that the court’s discretion is limited to the rules of court which allows for just twenty-one days to file and serve written addresses.
Counsel to the Attorney General of the Federation (AGF), Oladipo Okpeseyi (SAN), in his response to Olanipekun’s sixty-day request, expressed his reservations.
He said that the telecommunication company has not been consistent in its call for an out of court settlement of the matter.
“This is a matter of national importance. There have been concessions in the past and nothing happened”, he said.
He urged the court to make a consequential order that all the processes filed are deemed as properly filed and served.
Following the various submissions of lawyers,Justice Idris held that all the preliminary objections and substantive applications shall be taken together while all the processes filed shall be deemed as properly filed and served.
He then adjourned the matter till March 18, for report of settlement or for hearing.
MTN dragged the Nigeria Communication Commission (NCC) to court to challenge the sanction imposed on it urging the court to quash the fine.
Joined as co-respondent in the suit is the Attorney General of the Federation and Minister of Justice.
The telecommunication company, is challenging the powers of NCC to impose such a fine on it.
The telecoms company contended that NCC being a regulator, cannot assume all the functions of the state on its own.
It was further argued that the NCC cannot make the regulation, prescribe the penalty and impose the fine.
MTN also alleged that it was not afforded its constitutional right of fair hearing before a court of competent jurisdiction and more importantly, it had not been found guilty of any offence that will warrant it to pay such outrageous fine.
It contended that the sanction imposed on it by NCC was within twenty-Four hours of its written submission on the disconnection exercise and the impractical nature of the NCC deadline.
It stated that the deadline of seven days to disconnect 5.2 million subscribers was grossly inadequate and impracticable. This it was argued ran contrary to the requirement to give adequate notice to the subscribers and all operators.
It accused the regulatory agency of acting as a legislator, executor, accuser, prosecutor, judge and beneficiary of the penalty imposed and that the sanction (N200,000 per SIM) imposed on it was excessive.
It stated that the fine imposed on it, till date, is the highest fine ever imposed on a telecommunications company anywhere in the world, wondering if the fine is truly commensurate to the purported breach and if this would not frustrate the business of the company in Nigeria.
Consequently, MTN wants the court to determine whether having regard to the clear and unambiguous provisions of sections 1 (3), 4 and 6 of the 1999 Constitution (as amended), if the regulatory agency can validly exercise section 70 of the NCC Act in a manner that encroaches on the exclusive legislative powers of the National Assembly, as well as the judicial powers of the courts established under the Constitution.