MTN Asks Court to Quash $3.9bn Fine

• Parades seven senior advocates against FG

By Davidson Iriekpen

South African telecoms giant, MTN, has filed a suit at the Federal High Court in Lagos to challenge the $3.9 billion fine imposed on it by the Nigeria Communications Commission (NCC), urging the court to quash the fine.

last October slammed the telecoms firm with a fine of $5.2 billion for failing to disconnect unregistered subscribers. The initial fine was later reduced by 25 per cent to $3.9 billion earlier this month, with a payment deadline set for December 31.
But MTN through its team of lawyers – Chief Wole Olanipekun (SAN), Mr. Tanimola Molajo (SAN), Mr. A.B. Mahmoud (SAN), Dr. Gbolahan Elias (SAN), Mr. Oladipo Okpeseyi (SAN), Prof. Fabian Ajogwu (SAN) and Dr. Oladapo Olanipekun (SAN) – is challenging the powers of NCC to impose such a fine on it.
The telecoms company is arguing that on the basis that NCC, being a regulator, cannot assume all the functions of the state on its own, considering the fact that they made the regulation, prescribed the penalty and imposed the fine payable to the commission and not the federal government.

The firm is also contending 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 an outrageous fine.
It is of the view that the sanction imposed on it by NCC was applied within 24 hours of its written submission on the disconnection exercise and the impractical nature of the NCC deadline.
Stating that the deadline of seven days to disconnect 5.2 million subscribers was grossly inadequate and impracticable, the telecoms company said the deadline to disconnect 5.2 million subscribers was unfair and 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 of N200,000 per SIM which was imposed on it was excessive.
It stated that the fine to date is the highest ever imposed on a telecommunications company in the world, wondering if the fine was truly commensurate with the purported breach and if it would not frustrate the business of the company in Nigeria.
Sued alongside the NCC is the Attorney General of the Federation (AGF) and Minister of Justice.
MTN wants the court to determine whether having regard to the clear and unambiguous provisions of Sections 1(2)(4) and 6 of the constitution, 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?

It also stated that further to and having regard to the express tenor of Sections 1(2)(4) and (6) of the constitution when read together with Section 70 of the NCC, whether the first defendant’s promulgation of regulations 11, 19 and 20 of its Act (Registration of Telephone Subscribers) Regulations 2011 is not ultra vires to its subsidiary rule-making powers and an encroachment on the legislative powers of the National Assembly, as well as the judicial powers of the courts established under the constitution?
It also argued that having regard to the express provisions and dictates of Section 36 (1)(2) and (12) of the Constitution, whether the telecoms regulator can exercise the powers purportedly donated under Section 70 of its Act to create and or determine any obligation and to determine, impose penalties or fines on the plaintiff in respect thereof without adequate provision for the rights to fair hearing and of appeal?

It urged the court to strike out and nullify the provisions of regulations 11, 19 and 20 as well as Section 86 of the NCC Act.
The telecoms firm also wants the court to set aside and vacate the decision of the first defendant as contained in the letters dated October 20 and December 2 and 3, 2015, particularly as they relate to the imposition of any fine or penalty on it for the alleged violation of regulations 11, 19 and 20 of the NCC Act.

It equally wants the court to grant it a perpetual injunction restraining the defendants, either by themselves, members of the governing board, agents, staff, privies or any other person from enforcing or otherwise giving effect to or seeking compliance with the decisions of the first defendant as contained in the letters dated October 20 and December 2 and 3.
MTN also wants the court to grant it a perpetual injunction restraining the defendants and their agents from giving effect to or acting on or taking any other or further steps on its alleged contravention of the requirements or provisions of regulations 11, 19 and 20 of the NCC Act.

Source : Thisday