Court Starts Hearing of Case Challenging MTN Fine Friday

A law suit instituted against the Nigerian Communications Commission (NCC) challenging the N1.04 trillion fine the telecoms regulator imposed on MTN Nigeria Limited last month for failing to deactivate 5.2 million unregistered SIMs on its network, will come up for hearing This Friday. MTN has till Monday to cough up the fine.

The case that was jointly filed by Mr. Oluyinka Oyeniji as first applicant and Chief Adeolu Ogunbanjo as second applicant, challenging NCC for slamming the fine on MTN for violating its orders on SIM card deactivation, has received the attention of the Federal High Court in Lagos, where it was filed last week Friday.

The court on Thursday fixed the initial hearing of the case today, THISDAY gathered.
Oyeniji, a practicing lawyer and Ogunbanjo, who is the President of the National Association of Telecom Subscribers (NATCOMS), last Friday filed a case at the Federal High Court sitting in Lagos, challenging NCC over the fine, and prayed the court to stop NCC from further imposing fine on MTN.

They also asked the court to compel NCC to account for all the monies it collected from telecoms operators in the past as fines and to pay such monies to subscribers as compensation for poor service quality they had suffered in the past.

NCC and MTN were joined in the case as first and second respondents respectively.
According to Ogunbanjo, “In furtherance to the Federal High Court processes- suit No. FHC/L/CS/1663/2015 on the NCC - MTN N1 trillion fine filed at the Federal High Court, Ikoyi, Lagos on November 6, 2015, the matter has been assigned to Justice Idris Court, and hearing has been fixed for November, 2015 at Justice Idris Court, Federal High Court, Ikoyi, Lagos.

The court processes filed by the two applicants, include Originating Summons, Affidavit of Urgency, Motion Exparte and Motion for Interlocutory Injunction.

In a related development, Etisalat yesterday issued a statement, refuting claims that it is involved in the sales of pre-registered SIM cards, part of what compelled the NCC to fine MTN, N1.04 trillion.

Part of the statement that was made available to THISDAY, read: “Our attention has been drawn to an allegation that Etisalat agents are selling pre-registered SIM cards in some parts of the Lagos metropolis. We would like to state categorically that Etisalat does not condone, support or engage in any activity that contravenes laid down rules. Etisalat has communicated the rule against pre-registered SIMs to all its dealers and agents and we have put measures in place to ensure preregistered SIMs are not available on our network. In addition, we have trained supervisors in charge of SIM registration who  regularly carry  out checks at the  points of registration to ensure all agents follow laid down guidelines. Our policy is to hand over any agent found wanting to the appropriate security agency and we enforce this policy strictly.”

The statement further said: “We  reaffirm  our total commitment to  providing  support to the relevant authorities to guard against the sale of pre-registered SIM cards by illegal sales promoters. The purported promotion is false and we advise  the public to report such miscreants to our Experience centre nearest to them  or  call our  hotline 08099443291  to  enable  us  take  the  necessary actions.”

Meanwhile, Ogunbanjo told THISDAY that they decided to go court, because NCC erred in fining MTN, without carrying out due diligence on the matter to find out why MTN should have as much as 5.2 million unregistered SIM cards on its network, which led to the fine. NCC based the fine on N200,000 per unregistered SIM and 5.2 million unregistered SIMs were found on the MTN network, which summed up to N1.04 trillion.

The applicants, Oyeniji and Ogunbanjo who filed the court case against NCC, are calling for an order, mandating the first respondent to commission, establish and conduct monthly updates on the central database and to conduct rigorous campaign for applicants and other telephone subscribers to update their particulars with the respondents.

They are also calling for an order, mandating the respondents to publish newspaper apologies to the applicants and other telephone subscribers for the lack of establishment, maintenance and conducting updates on the central database.

In a sworn affidavit, both applicants asked the court for the determination of the following questions; whether by virtue of Section 53 of the Nigerian Communications Act, 2003 (Laws of the Federation of Nigeria, 2004), the first respondent has granted the second respondent, fair hearing as relating to issues of deregistration of applicants – subscribers; whether by the principle of Nemo Judex Incausa sua and the provisions of the Nigerian Communications Commission (Registration of Telephone Subscribers) regulations, 2011, the first respondent can act as a judge in its own case as relating to the establishment, maintenance and conducting monthly updates of the central database; whether the first respondent has shirked its statutory obligations as contained in Sections 4, 5, 6 and 9 regarding the establishment, maintenance and updates on the central database; whether the first respondent can impose and exert a fine on the second respondent and other telecommunications operators without the latter first being convicted by a court of competent jurisdiction as prescribed by the provisions of the Nigerian Communications Commission (Registration of Telephone Subscribers) regulations, 2011, particularly Section 19 thereof.

The applicants made a declaration before the court that the NCC, which is the first respondent, failed in its statutory duties to establish, maintain and conduct monthly updates of the central database from 2011 till 2015, and also made a declaration of the court that the first respondent failed to efficiently maintain the central database in spite of different exercises conducted in that regard and huge sums of monies deployed to it.

The applicants declared that the N1.04 trillion fine imposed on the second respondent by the first respondent was illegal, unconstitutional, null and void, insisting that NCC cannot unilaterally impose and/or exert any fine on the second respondent without securing a conviction of the latter before a competent court of jurisdiction.

They said NCC acted ultra vires the provisions of the registration of telephone subscribers regulation 2011 by failing to establish, maintain and conduct updates on same, yet imposing fines on the second respondent, which is MTN.

Meanwhile, the fine is already generating a lot of controversy within the management of MTN Group in South Africa, leading to the resignation of the Chief Executive Officer of MTN Group in South Africa, Mr. Sifiso Dabengwa.

Following the resignation of Dabengwa, a Non-Executive Chairman of MTN Group, Mr. Phuthuma Nhleko, was immediately appointed to act as Executive Chairman for a maximum period of six months, while the telecoms company searches for Dabengwa’s replacement.