Orakul Resources Ltd & Anor V. Ncc & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED LAWAL GARBA, J.S.C. 

By a writ of summons dated 26th February, 2004 issued at the Federal High Court, Abuja (trial Court), the Appellants claimed declaratory and injunctive orders against the Respondents and one other, as follows:-

“a. A declaration that the purported exercise of the 1st defendant’s regulatory powers with respect to the purported interconnection rate determination issued on December 2, 2003 was in breach of Sections 57, 58, 60, 70, 71, 99, etc of the Nigerian Communications Act, 2003 and therefore invalid, null and void and of no effect whatsoever.

b. A declaration that the purported interconnection rate determination issued by the 1st defendant on December 2, 2003, was in breach of Section 97 of the Nigerian Communications Act, 2003 and therefore invalid, null and void and of no effect whatsoever.

c. A declaration that the purported interconnection rate determination issued by the 1st defendant on December 2, 2003, having been made in breach of the plaintiffs’ fundamental right to a fair hearing enshrined in Section 36 of the Constitution is invalid, null and void and of no effect whatsoever.

d. An order of perpetual injunction restraining the defendants, whether by themselves, their servants and/or agents howsoever called from implementing or taking any steps, or further steps to implement the said interconnection rate determination.”

e. An order compelling the 1st defendant to conduct the mandatory inquiry as a condition precedent to its regulation of the interconnectivity rates applicable in the Nigerian telecommunications market.

f. An order compelling the 1st Defendant to publish a public notice inviting all stakeholders including consumers/subscribers of telecommunications services including the plaintiffs to the inquiry on any proposed interconnection rate regulation.

g. An order of perpetual injunction restraining the 1st defendant from attempting and/or purporting to regulate interconnectivity rates until it complies with the stringent procedural requirements of the Nigerian Telecommunications Act, 2003, relating to notice and inquiry.

h. The cost of proceedings including attorney’s fees.”

In reaction to the action, the Respondents filed objections separately challenging the competence of the action on the ground of failure by the Appellants to comply with the provisions of Sections 86, 87 and 88 of the Nigerian Communications Act, 2003 (NCC Act) before initiating the action.

In a ruling delivered on the objections, the trial Court upheld same and struck out the Appellants’ action on the ground that it had earlier decided the same or similar objection in other cases raised by the Respondents, which the parties agreed to be bound by, and held that the action did not comply with a condition precedent for the invocation of its jurisdiction.

Aggrieved with the trial’s decision, the Appellants went on appeal against same at the Court of Appeal, Abuja Division (Court below) vide the Notice of Appeal dated 19th January, 2005 which contained Nine (9) grounds of dissatisfaction.

After hearing the parties, the Court below dismissed the appeal and affirmed the decision of the trial Court in the judgment delivered on the 24th January, 2007.