Justice Mohammed Idris of the Federal High Court in Lagos Tuesday refused to grant an application of mareva injunction filed by the federal government seeking to stop MTN Nigeria Communications Ltd from moving funds in its accounts in 21 commercial banks out of Nigeria.
The judge, ruling on the application filed by the Attorney-General of the Federation and Minister of Justice Abubakar Malami (SAN), held that the government failed to place enough material before the court to prove that MTN was about to empty its bank accounts and move its funds out of the country.
The government had filed the application to prevent MTN from boycotting the payment of the N1.04tr fine imposed on it by the Nigerian Communications Commission (NCC) for its failure to deactivate its unregistered subscribers.
The government had urged the court for an order directing all the 21 banks to open a special interest-yielding account in the name of the Chief Registrar of the Federal High Court and move N1.04tn out of whatever funds that were standing to MTN’s credit in their possession.
The government, in an affidavit attached to the application, expressed the fear that MTN could move all its funds out of the country before the N1.04tn fine could be enforced.
Counsel to the federal government, Dipo Okpeseyi (SAN), in the 14-paragraph affidavit deposed to by one of his juniors in chamber, Steve Nwabueze, alleged that MTN was in the habit of regularly repatriating its funds out of Nigeria.
Okpeseyi claimed that between October 2007 and May 2009, a period of 19 months, MTN moved over $7.7bn of the money it made in Nigeria to a foreign account.
The lawyer also gave the court an instance when in one day, specifically on February 8, 2008, MTN transferred over $936m out of Nigeria to accounts in Mauritius, Cayman Island and British Virgin Island.
He stated, “Unless this honourable court urgently entertains this application, the plaintiff/respondent would move its funds out of Nigeria, being the jurisdiction of this honourable court, and thereby frustrate the enforcement of the fine in the likely event that this honourable court sanctions the imposition of the fine.”
Okpeseyi further insisted that MTN was under an obligation to pay the N1.04tn fine because it was NCC’s administrative decision, which remained final unless it was reviewed by the Commission or nullified by the court.
The senior lawyer also submitted that though NCC had earlier given MTN a concession on the fine and reduced it to $3.9bn, but since MTN had neglected or failed to pay on or before December 31, 2015, the fine remained N1.04tr.
Okpeseyi averred that instead of taking advantage of the concession, MTN resorted to filing a suit in order to buy time, with the hope that it could move all its funds out of Nigeria before the case would be decided.
He, therefore, urged the court to grant the application in the interest of justice to prevent the court’s decision from being rendered nugatory if it went in the favour of the Federal Government and NCC.
However, Justice Idris declined to grant the application, holding that the case was a very sensitive one and of public interest, so he would rather urgently hear the case filed by MTN to challenge the fine and give a judgment within a short time.
But before he adjourned the case to January 22, 2016 for hearing, the judge made an order for the parties to maintain status quo ante bellum pending the determination of the suit.
MTN in December, 2015 filed a suit through its lawyers led by Chief Wole Olanipekun (SAN) to challenge the sanction.
The telecommunication giant had argued that 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 the federal government.
MTN had also claimed that it was not afforded its constitutional right of fair hearing before a court of competent jurisdiction and, more importantly, it had not been found guilty of any offence that will warrant it to pay such an outrageous fine.
However, the attorney-general, in his reply to the suit, insisted that NCC is justified to impose the fine, and that it is his duty, as the chief law enforcement officer in the country, to ensure that all the laws made by the National Assembly are obeyed.
Also, NCC has urged the court in a motion on notice filed through its lawyers, Ahmed Raji (SAN) and Mahmud Magaji (SAN), to dismiss or decline to hear the suit for want of jurisdiction or send it to Abuja.
The Commission argued that the suit was wrongly filed in Lagos, noting that the subject of the dispute took place in Abuja, while the two respondents in the suit, NCC and AGF are also based in Abuja.
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