" ITREALMS: Court upholds sale of 2.3GHz, orders NCC to release license

Thursday, March 18, 2010

Court upholds sale of 2.3GHz, orders NCC to release license

A Federal High Court sitting in the Federal Capital Territory (FCT) Abuja, yesterday, Thursday, upheld the sale of 2.3 Gega Hertz (GHz) by the Nigerian Communications Commission (NCC), saying the Ministry of Information and Communications does not have the powers to cancel the auction in the first instance.

The court also ordered that all the relief sought by the plaintiff be granted, and directed NCC to release for the applicant (Mobitel) the 2.3GHz license.
Daily Champion recalls that on May 22, 2009, the Minister of Information and Communications, Prof. (Mrs) Dora Akunyili announced the cancellation of the sale, with a directive to NCC to re-offer the 2.3 spectrum for sale afresh.

Prior to the cancellation, NCC had pronounced three companies winners out of the 40 applicants that contested for the spectrum, including Mobitel Nigeria Limited, Spectranet Limited and Multi-Links Telkom Limited, while the fourth contestant, Galaxy Wireless was reportedly unable to meet up with the payment terms, thereby stood disqualified. The sum of N4,104,000,000 was realized from the auction.

But delivering his judgment, in the suit file by one of the winners in the 2.3GHz auction, Mobitel Nigeria Limited, against four defendants namely the Hon. Minister of Information and Communications, Federal Ministry of Information and Communications, Attorney General of the Federation and Minister of Justice and NCC, Justice Umar Garba of Federal High Court Abuja, on the purported cancellation of the 2.3GHZ sale, upheld the sale.

He also said in the suit number FHC/ABJ/M/312/2009, that the respondent’s objections have no merit and it must fail, even as the objections of the first and second defendants have no merit and were dismissed.

A copy of the judgment made available to ITRealms Online, Justice Garba, noted that having seen all the preliminary objections, that he considered the sustentative application of the matter before his court.

“Pursuant to leave granted to the applicant by this court on the 27th of May 2009 to apply for an order for a judicial review, the applicant filed an originating motion on the 1st of June 2009 and same was supported by a written address. The first second and third respondents filed written addresses. The third respondent initially appeared at the proceedings and subsequently disappeared. I hereby treat all processes filed by the third respondent as being abandoned and I do hold,” he said.

Garba further said that in taking his judgment, he had considered “Whether it is within the powers of the first and second respondents to cancel an auction conducted by the 4th Respondent for the issuance of license in the communications sector.

“The applicant’s case as taken clearly from the facts in the statements and supporting affidavits is that the applicant participated in the auction of the 2.3GHz spectrum licensing by the fourth respondent (NCC) and met all the criteria as advertised, awaiting the issuance of the license to operate.

When the first and second respondent issued a letter on the 25th of May 2009 ‘ Exhibit NCC’ and Exhibit ‘N’, the applicant (Mobitel) ran to the court for judicial interpretation of the Nigerian Communications Act 2003, which is the law providing for the allocation of frequency.

According to him, the law conferred on NCC, the sole and exclusive powers to manage and administer the frequency spectrum for the communications sector to its end users by grants of license for the use of the said frequencies, buttressing his point with reference to Section 121, (1) & (2) of the Act which provides that “Notwithstanding the provisions of any other written law or subject to the provision of this Act, the
Commission shall have the sole and exclusive power to manage and administer the frequency spectrum for the communications sector and in that regard to grant licenses for and to regulate the use of the said frequency spectrum.

In addition, Justice Garba quoted Section 121, (2) thus, “The Power of the Minister under the Wireless Telegraphy Act as far as they relate to the Communications are hereby vested in the Commission.”

Stressing that by the provisions of this Act, the Commission is independent of any interference in the performance of its statutory duties, pointing out that the purpose has been to insulate the Commission in the performance of this crucial a highly sensitive function of regulating the Communications sector.

The end user, he pointed out is for the purpose of the function of the Commission, the operators in the communications sector.

From the foregoing, Justice Garba said that he upheld the Act conferment of ‘NO power’ in the first respondent (Minister of Communications) to impose any directive or instruction on the Commission, or any of its officers or intervene in the performance of the Commissions functions.

“It is clear that the express intentions of the Act regarding the role of the first respondent is to limit its powers to only board matters on policy and issues that affect treaties in view of section 23 of the Nigerian Communications Act,” he noted.

Emphasizing that Section 25, sub-section 2 goes further to impose on the Minister of Communications the statutory obligation of ensuring the sanctity of the independence guaranteed to the Commission by the Act.

Therefore, “The first respondent’s (Minister of Communications) purported cancellation of the Auction is absolutory and totally arbitrary as it relates to Section 123 of the Nigerian Communication Act 2003, which provides that ‘the Commission may make regulations in any matter under this chapter. Section 123 (2), the regulation may include procedure for assignment of spectrum such as but not limited to the following a) Auctions; b) Tender; c) Fixed price to be determined by the Commission,” he said.

The above provision gives the Commission the exclusive powers regarding the sale of frequency and makes absolutely no mention of the first respondent (Minister of Communications).

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