Blue-chip Communications Company V. Nigerian Communications Commission (2008)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A.

This is an appeal against the ruling of S. J. Adah J. of the Federal High Court sitting in Abuja. The said ruling was delivered on 31/3/04 striking out the Appellant’s originating summons for incompetence.

The brief background facts of this case are that on 16/10/03 the Appellant through its solicitors applied to the Respondent amongst others, for a third generation spectrum mobile telecommunications license. The Respondent refused to grant the said license on the grounds that there were some prevailing regulatory and legal limitations being encountered by the Respondent at that time. This was communicated to the Appellant in the reply of the Respondent dated 28/10/03. Aggrieved by the reply the Appellant instituted an action as plaintiff at the Federation High Court, Abuja seeking declaratory and injunctive reliefs against the Respondent as defendant.

In the Appellant’s originating summons, it sought for the direction of and determination by the trial Court of some questions and the grant of some declaratory reliefs. For ease of reference and convenience, I hereunder verbatim reproduce these as follows:

”1.Whether having regard to the NCC Act, 2003 the defendant was justified to refuse the plaintiff’s application for a third Generation (3 – G) Spectrum Mobile License solely on the ground that the defendant has previously granted the GSM operators a 5-year exclusivity on mobile services in Nigeria.

2. Whether having regard to the NCC Act 2003, the defendant can not issue any other mobile license in Nigeria for available spectrum until the expiration of the alleged 5-year exclusivity on mobile service purportedly granted the GSM operators by the defendant.
3. Whether having regard to the digital mobile licenses of the GSM operators, the defendant actually granted the GSM operators a 5-year exclusivity in mobile service in Nigeria and if the answer is in the affirmative, whether the defendant is indeed authorized by the NCC Act, 2003 to issue mobile spectrum licenses with conditions and/or terms capable of undermining technological innovation and substantially lessening competition in the telecommunications market.
4. Whether having regard to the NCC Act, 2003, the defendant has the statutory power to undermine competition in the telecommunications sector by granting to GSM operators a 5-year exclusivity on mobile service in Nigeria.
5. Whether having regard to the provisions of the NCC Act 2003 particularly Section 4(1)(a) (b) (d) & (e), 4(2) and Sections 90 – 95, the defendant can grant licenses exclusively to a particular group of licensees capable of foreclosing entry by other operators into the Nigerian Telecommunications Market and whether such conduct/act is anti-competitive in the telecommunications market.
6. Whether taking the NCC Act holistically, the defendant can by its regulations make rules, regulations, guidelines and/or enter into agreements with third-parties which undermine the policy thrust of the NCC Act 2003 as envisioned by Section 1(a-i) to wit: the provision of telecommunication services everywhere in Nigeria at a cheap, easily affordable and competitive price. If the answer is in the negative, whether the defendants grant of a five (5) year exclusivity to GSM operators is not in conflict with this policy.
7. Whether having regard to Section 12 of the NCC Act 1992 which is preserved by virtue of Section 151(1) of the NCC Act 2003, the defendant has the power to confer such right of exclusivity on the GSM operators.

The Plaintiff seeks the following reliefs:

(i) A declaration that having regard to the NCC Act, 2003, the defendant was not justified to refuse the plaintiff’s application for a third Generation (3-G) Spectrum Mobile License solely on the ground that the defendant has previously granted to the GSM operators a 5- year exclusivity on mobile service in Nigeria.

(ii) A declaration that having regard to the NCC Act, 2003, the defendant can issue additional mobile license in Nigeria for available spectrum during the currency of the alleged 5-year exclusivity on mobile service purportedly granted to the GSM operators by the defendant.

(iii) A declaration that having regard to the digital mobile licenses of the GSM operators, the defendant did not actually grant the GSM operators a 5-year exclusivity in mobile service in Nigeria. In the alternative, a declaration that contrary to the defendant’s erroneous assertion, it never in fact granted to the’ GSM operators a 5-year exclusivity that would bar entry into the 3-G mobile telecommunications market.

(iv) A declaration that the defendant is not empowered by the NCC Act, 2003 to include conditions and/or terms in mobile spectrum licenses capable of undermining technological innovation and substantially lessening competition in the telecommunications market.

(v) A declaration that having regard to the NCC Act, 2003, the defendant has no statutory power to undermine competition in the telecommunications sector by granting to GSM operators a 5-year exclusivity on mobile service in Nigeria.

(vi) A declaration that having regard to the provisions of NCC Act, 2003, particularly Section 4(1) (a), (b), (d) & (e), 4(2) and Sections 90 – 95, the defendant cannot grant licenses exclusively to a particular group of licensees capable of foreclosing entry by other operators into other aspects of the Nigerian Telecommunications Market.

(vii) A declaration that taking the NCC Act holistically the defendant cannot by its regulations make rules, regulations, guidelines and for enter into agreements which undermine the policy thrust of the NCC act 2003 as envisioned by Section 1(a-1) to wit: the provisions of telecommunication services everywhere in Nigeria at a cheap, easily affordable and competitive price and a further declaration the defendant’s purported grant of a five (5) year exclusivity license to GSM operators is in conflict with the policy thrust of the NCC Act 2003.

(viii) A further declaration that having regard to Section 12 of the NCC Act 1992 as preserved by Section 151(1) of the NCC Act, 2003, the defendant has no power to confer such right of exclusivity on the GSM operators.