$5.2bn Fine: Mtn Hires Seven Senior Advocates To Challenge Ncc In Court

SAN FRANCISCO, December 21, (THEWILL) – Mobile telecom company, MTN Nigeria, has hired Chief Wole Olanipekun SAN and six other Senior Advocates of Nigeria to handle its suit against the federal government and the Nigerian Communications Commission, NCC, before the Federal High Court in Lagos, challenging the propriety of the $3.9bn fine imposed on it by the NCC.

Olanipekun – alongside the other SANs, namely: A.B. Mahmoud, Tanimola Molajo, Dr. Gbolahan Elias, Oladipo Okpeseyi, Prof. Fabian Ajogwu, Dr. Oladapo Olanipekun – through an originating summons, are urging the court to quash the fine because the NCC does not have the constitutional power to impose such a fine on MTN.

Sued alongside the NCC is the attorney-general of the Federation, AGF, and Minister of Justice.

It would be recalled that the NCC had in October this year slammed the South African telecom company with a fine of $5.2bn for failing to disconnect unregistered subscribers and set December 31, 2015 as deadline for the payment of the said fine.

The commission later reduced the initial fine by 25 per cent, to $3.9bn, earlier this month, with the payment deadline still set for the last day in the year.

But MTN Nigeria is arguing that the NCC, being a regulator, cannot assume all the functions of the state on its own, considering the fact that it made the regulation, prescribed the penalty and imposed the fine, payable to the commission and not to the federal government.

The embattled telecom company also claimed that it was not afforded its constitutional right to fair hearing before a court of competent jurisdiction and, more importantly, it had not been found guilty of any offence that would warrant it paying such an outrageous fine.

It continued that the imposed sanction by the NCC was within 24 hours of its written submission on the disconnection exercise and the impractical nature of the NCC deadline, adding that the deadline of seven days to disconnect 5.2m subscribers was grossly inadequate and impracticable, unfair and ran contrary to the requirement to give adequate notice to the subscribers and all operators.

MTN Nigeria, which accused the regulatory agency of acting as a legislator, executor, accuser, prosecutor, judge and beneficiary of the penalty imposed, stressed that the sanction of N200,000 per unregistered SIM card imposed on it was excessive.

Insisting that the fine imposed on it is, till date, the highest fine ever imposed on a telecommunication company worldwide, the company wondered if the fine was truly commensurate with the purported breach and if it would not frustrate the business of the company in Nigeria.

It prayed 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?

The company also argued, 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 1st defendant's promulgation of regulations 11, 19 and 20 of its Act (Registration of Telephone Subscribers) Regulations 2011 is not an encroachment on the legislative powers of the National Assembly, as well as the judicial powers of the courts established under the Constitution?

Meanwhile as at press time, no date has been fixed for hearing of the suit.