Salami: Confusion As NCC, MTN, AGF Issue Contradictory Claims On Call Logs


BEVERLY HILLS, February 04, (THEWILL) - There was a confusion of sorts Tuesday as the Nigerian Communications Commission (NCC) contradicted the claims by MTN Nigeria Communications Limited that it was mandated by law to keep call data of its customers for only three months.

This was evident as hearing continues in the case instituted by former Osun State governor, Prince Olagunsoye  Oyinlola, alleging that a former President of the Court of Appeal, retired Justice Ayo Salami,  had communications with the leaders of the now defunct Action Congress of Nigeria (ACN) while presiding at the appeal panel that sacked Oyinlola from office as Osun State governor .

Responding  to a Freedom of Information request by  Oyinlola, NCC  said: "Please note that telecoms operators are required to retain call data for a minimum period of 12 months or as otherwise directed by the commission.

The directive to operators took effect from the 3rd July, 2007," NCC said in a  letter  signed by  the Director, Legal and Regulatory Services, Josephine Amuwa.

NCC had failed to state this  since the  controversy started, despite several overtures made to it in this regard just as MTN also told a panel of the National Judicial Council (NJC) which investigated the case against Justice Salami  that the extant law allowed it to keep call data for only three months.

In a suit filed by Oyinlola seeking to compel the Attorney General of the Federation (AGF) to prosecute MTN and its directors for lying on oath, MTN in a counter affidavit deposed to by Mr.

Mathew Okoromi, a Senior Subscriber Fraud Analyst with the company, also repeated same  to  the NJC panel and the Special Task Force that the IGP set up in 2011 to investigate Oyinlola's allegations.

In paragraph 6, he stated : "I know the 2nd Respondent (MTN) duly honoured request in line with extant laws and regulations and in line with its policies and capacity constraint at the material times which limits the period within which CDRs can be stored on the 2nd Respondent's network to typically about three months by releasing the CDRs to the law enforcement agencies.

" In paragraph 9, he said: "The 2nd Respondent did not deliberately or otherwise, frustrate the work or mislead the NJC panel in any way.

The 2nd Respondent did release through the office of the NSA and to the SSS, CDRs in line with its representation in paragraph 6 above.

" The telecoms company repeated this  claim severally in its counter affidavit.

Even the office of the AGF, which obviously had fallen for the misrepresentation by MTN also claimed that the company had complied with the law.

But in its counter affidavit to   Oyinlola  suit, deposed to by Ballah Ali of the Federal Ministry of Justice, the office of the AGF said: "That in furtherance of paragraph 6 above, the 1st Respondent (AGF) explained that the submission of call logs for 90 days is in consonance with the law.

" However, the letter from the NCC has now fatally punctured that claim.

Also, despite a police investigation report which indicted MTN and  another proof that MTN had released to the Ogba Divisional headquarters of the police call logs for five months, the office of the AGF held the view that MTN had done no wrong and should not be prosecuted.

Paragraphs 5 and 6 of the counter affidavit from the office of the AGF read: "That the AGF also received the police investigation report in respect of the matter upon which the applicant (Oyinlola) wants the AGF to prosecute MTN.

"That the AGF through the office of the Director Public Prosecutions, perused the case file and issued a legal advice to the police indicating that there was no prima facie case established against the suspects (MTN and its directors.

)" MTN had also disputed the finding of the police and described the police report as: "patently illogical, self-contradictory, disjointed and cannot form the basis of any reasonable prosecution by any serious-minded law officer.

" Oyinlola had claimed in the suit that had MTN released the call logs of communication between Salami and the ACN leaders for a period of one year, his claims that such communications indeed existed would have been made manifest.

He said: "It is a shame that the office that is established to uphold the sanctity of the law would so brazenly collude with a telecoms company to perpetrate injustice.

" Oyinlola had already got the leave of court to commence proceeding for an order of mandamus to compel the AGF to prosecute MTN and its directors.

In the suit, Oyinlola argued that MTN deliberately withheld communications between retired president of the Court of Appeal, Justice  Salami and the leadership of the defunct ACN from the NJC panel that investigated his petition against Salami.

Oyinlola added that the call data records that MTN transmitted to NJC through the security agencies did not only deliberately avoid the period that was key to his petition, but also conveniently omitted the incoming calls.

The suit was filed pursuant to Order 34 Rules 1(1)&3 of the Federal High Court (Civil Procedure) rules 2009, Section  174 (1) (2) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

In a similar development, Oyinlola had petitioned an official of the MTN, Rotimi Odusola, over alleged perjury.

In a petition addressed to the Inspector General of Police, Oyinlola alleged that Odusola consciously and deliberately misled the NJC when he appeared before its Special Investigative Panel to testify by denying the release from his very department, of call data records which spanned a period of five months.

He further alleged that Odusola went ahead to commit perjury by deposing in his witness statement on oath that MTN's capacity to store and generate call detail history was limited to three months even as the call data records  in question covering five months were earlier released to Area G command, Ogba, Lagos.

Oyinlola  is therefore praying the court for an order of mandamus compelling the AGF to prosecute MTN and its directors by instituting and undertaking criminal proceedings against them for committing the offence of an attempt to suppress evidence.

In his argument, counsel to Oyinlola, Adebisi Raimi,  said   consequent upon the corporate, ethical and professional misconduct of the 2nd respondent before the NJC Special Investigative Panel set up in 2011, which affected negatively the interest of the Applicant, the Applicant on March 15, 2012 forwarded a petition to the Minister of Police Affairs and the Inspector-General of Police complaining about the aforementioned misconduct of the 2nd respondent.

He further argued that the Inspector-General of Police charged a Special Task Force to investigate the matter and on February 8, 2013 a police report in respect of the matter was released.

He also submitted that the aforementioned police report recommended that the MTN be prosecuted for an attempt to suppress evidence adding that  the entire case file together with the police report had been transferred by the Force Headquarters to the office of the Attorney-General of the Federation and Minister of Justice for necessary legal actions.

The plaintiff however submitted that till date, the office of the Attorney-General of the Federation and Minister of Justice had refused, failed or neglected to institute and undertake criminal proceedings against the 2nd respondent and its directors despite several demands to do so by the Applicant.

He added that  the office of the Attorney-General of the Federation and Minister of Justice had also failed or refused to authorize the Director of Public Prosecution of the Federation (DPP) or any other qualified officer of the Federal Ministry of Justice to institute and undertake criminal proceedings against the 2nd respondent and its directors.

He also argued that it was the sacred and constitutional duty of the 1st respondent under Section 174 (1), (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to institute and undertake criminal proceedings against any person before any court of law in Nigeria in respect of any offence created by or under any Act of the National Assembly.

He also submitted that the AGF  had failed, refused or neglected to have regard to public interest and interest of justice as enshrined in Section 174(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).