$3.9bn fine: MTN, NCC begin out-of-court settlement

MTN Nigeria yesterday told the Federal High Court in Lagos that it had begun an out-of-court settlement of the $3.9billion sanction imposed on it by the Nigerian Communications Commission (NCC).

MTN's lawyer, Chief Wole Olanipekun (SAN), said both parties were exploring settlement options.

Olanipekun sought 60 days to allow for further discussions between parties.

Counsel for the Attorney-General of the Federation (AGF), Mr Oladipo Okpeseyi (SAN), said that the telecommunication firm had not been consistent in its move for an amicable resolution.

'This is a matter of national importance. There has 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.ý The judge granted the prayer.

Justice Mohammed Idris held that the preliminary objections and substantive application would be taken together.

NCC had in October sanctioned MTN for allegedly failing to disconnect unregistered subscribers.

The initial fine of $5.2billion was reduced by 25 per cent to $3.9billion, with a December 31 payment deadline.

But MTN challenged NCC's powers to impose the fine. It argued that NCC, being a regulator, could not assume all the functions of the state.

MTN said the commission could not make the regulation, prescribe the penalty and impose the fine payable to it and not to the Federal Government.

The firm also alleged that it was not afforded its constitutional right to fair hearing before a court of competent jurisdiction.

Besides, MTN said it had not been found guilty of any offence that would warrant it to pay such a fine.

It contended that the sanction imposed on it by NCC was within 24 hours of its written submission on the disconnection exercise and the impractical nature of the NCC deadline.

According to MTN, the deadline of seven days to disconnect 5.2 million subscribers was grossly inadequate and impracticable.

The telecoms company said the deadline was unfair and ran contrary to the requirement to give adequate notice to the subscribers to update their records.

It accused the regulatory agency of acting as a legislator, executor, accuser, prosecutor, judge and beneficiary of the penalty.

MTN said NCC's N200,000 per SIM sanction was excessive, being the highest fine ever imposed on a telecommunications company in the world.

The company wondered if the fine is truly commensurate with the purported breach and if it would not frustrate its business in Nigeria.

Attorney-General of the Federation (AGF), Abubakar Malami (SAN), is also a defendant in the action.

MTN wants the court to determine whether having regard to sections 1 (3), 4 and 6 of the 1999 Constitution (as amended), the regulatory agency can validly enforce 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 said 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 Act, whether the commission's promulgation of regulations 11, 19 and 20 of its Act (Registration of Telephone Subscribers) Regulations 2011 is not ultra vires its subsidiary rule-making powers.

It also wants the court to determine whether the regulations do not amount to an encroachment on the National Assembly's legislative powers, as well as the courts' judicial powers.

Justice Idris adjourned to March 18 for report of settlement.