Monday, 21 May 2018

MTN FINE: FEDERAL HIGH COURT DISMISSES SUIT TO COMPEL PAYMENT OF ORIGINAL FINE

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A law suit was recently brought to the Federal High Court in Abuja by a member of the House of Representatives, Mr Raphael Igbokwe and a Mr Emmanuel Njoku against MTN Nigeria Communications Ltd seeking an order of the court compelling MTN to pay into the Federation Account, the sum of N1.04trillion, being the fine that was imposed on it by the Nigerian Communications Commission (NCC) in 2015. Other defendants in the suit were the Attorney General of the Federation and the Nigerian Communications Commission.
 
In October 2015, the Federal Government of Nigeria, through the NCC, fined MTN the sum of N1.04trillion for breach of Section 20(1) of the Telephone Subscribers Regulation (TSR) Law for not meeting the deadline set up by the Mobile Network Operators for disconnecting the Subscribers Identification Modules (SIM) with improper registration. The compliance audit carried out by the NCC on the MTN network revealed 5.2million unregistered customer lines that were not de-activated. This led to the NCC fining the telecommunications company $1,000 for each unregistered SIM.
 
The fine was later reduced to N780billion but MTN later took an action against the NCC at the Federal High Court against the manner in which the fine was imposed. However, in February 2016, MTN withdrew its case against the NCC and made an initial “goodwill” payment of N50billion to create a conducive atmosphere for further negotiations. In June 2016, after months of negotiations, both parties resolved that MTN would pay only N330billion from the N780billion it was earlier reduced to, inclusive of the earlier N50billion goodwill payment, with the balance of N280billion paid in six tranches before May 31st 2019.
 
The recent suit brought by Messrs Raphael Igbokwe and Emmanuel Njoku was said to be brought by them on behalf of the “Nigerians Against Exploitation By Telecommunications Operators”. The plaintiffs also queried the powers of the Minister of Justice and Attorney General of the Federation and the Minister of Communications Technology to reduce the original N1.04trillion fine imposed on MTN.
 
However, the Federal High Court, on the 27th of October 2017, has rejected the suit and also 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.
 
The court upheld the preliminary objections filed by the defendants against the suit on the grounds that the suit was statute-barred. The court held that the plaintiffs did not fulfill necessary condition precedents to the filing of such a suit as well as failing to exhaust all other remedies provided in the NCC Act and the Federal High Court (Civil Procedure) Rules.
 
In its judgment, the court stated that the plaintiffs ought to have applied for a statement of reason from the NCC, request for a review of the decision of the Commission within thirty days and specified reasons they wanted MTN to be compelled to pay the fine in full. Only after the conditions had been met could the plaintiffs have applied to court for a judicial review of the decision.
 
However, over thirty days had elapsed before the plaintiffs approached the court to challenge the fine which was reduced since 2015, therefore statute-barring them from bringing this suit.

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