MTN has asked the Federal High Court sitting in Lagos to quash the USD3.9 billion sanction imposed on it by the Nigerian Communications Commission (NCC). But in a new development, a lawyer, Abubakar Sani, in a separate suit, has also asked a Federal High Court sitting in Abuja to declare the fine unlawful.
NCC had in October sanctioned the company for allegedly failing to disconnect unregistered subscribers. The initial fine of $5.2 billion was reduced by 25 per cent to $3.9 billion earlier this month, with a December 31 payment deadline. But MTN, through its lawyers led by a former Nigerian Bar Association (NBA) President Chief Wole Olanipekun (SAN), is challenging NCC’s powers to impose the fine.
Also joined as co-defendant in the suit is the Attorney General of the Federation and Minister of Justice, Abubakar Malami, (SAN).
According to MTN, NCC could not assume all the functions of the state. It 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 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.
MTN is claiming that the deadline of seven days to disconnect 5.2 million subscribers was grossly inadequate and impracticable. It 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.
The network described NCC’s NGN200,000 per SIM sanction as excessive, adding that it is the highest fine ever imposed on a telecommunications company in the world.
MTN asked 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 did not amount to an encroachment on the National Assembly’s legislative powers, as well as the courts’ judicial powers.
