Nigerian Communication Commission V. Motophone Limited & Anor (2019)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

The 1st Respondent, as Applicant, took out an Originating Motion at the trial Federal High Court against the Appellant and the 2nd Respondent for a judicial review as to whether the confiscation of the rights and property of the 1st Respondent was constitutional and legal, as contained at pages 3-5 of the record thus:

1. A DECLARATION that the letter MC/TD/2000/VOL 1 dated 3rd October, 2000 from the Minister of Communications to the Applicant purporting that the frequency assignment given to Applicant has “already expired” is (i) a confiscation of the rights and property of the Applicant and is illegal, unconstitutional, null and void; (ii) wrongful, invalid and ineffectual; (iii) substantively and procedurally ultra vires the powers of the Respondents and is null and void; and (iv) is perverse, arbitrary, capricious and unreasonable and by reason thereof beyond the powers of the respondent to make and is null and void.
2. A DECLARATION that the letter from the Nigerian Applicants telecommunications licenses is (i) invalid and ineffectual; (ii) substantively and

1

procedurally ultra vires the powers of the Respondents and is null and void; (iii) is perverse, arbitrary, capricious and unreasonable and by reason thereof beyond the powers of the Respondent to make and is null and void; and (iv) is a confiscation of the rights and property of the Applicant and is illegal, unconstitutional, null and void.

3. A DECLARATION that the denial and interference by the Respondents with the effect and operation of the Applicants (i) Fixed Wireless PNL License in force from 1st June 1997 for a duration of Ten years from 1st June 1997 till 31st May 2007 and express provision for automatic renewal for a further period of ten years from 1st June 1997 to 31st May 2017; and (ii) Cellular Mobil License from 1st September 1997 for a duration of Fifteen years from 1st September 1997 to 31st August 2012 and express provision for automatic renewal for a further period of Fifteen years from 1st September 2012 to 31st August 2027 issued by the 1st Respondent to the Applicant and with the Frequency assignment granted to the Applicant by the 2nd Respondent under Decree 75 of 1992 and Wireless Telegraphy Act Laws of the Federation 1990 is a

2

deliberate and de facto confiscation of the Applicant’s rights and property which is ultra vires, unlawful and unconstitutional and which has injured the Applicant unlawfully and in breach of contract.

4. AN ORDER that the Respondents indemnify or pay as DAMAGES to the Applicant in respect of the following or such other sum or sums as may be found upon inquiry to be due: (i) for lost fees paid, (ii) costs thrown away, (iii) loss of use, (iv) loss of profit, (v) loss of opportunity and (vi) malicious injury to the Plaintiff’s business and undertaking all resulting directly from the Respondent’s decisions and actions complained of herein.

Particulars..

(I) Application, License and sundry Fees

(US $891,923) -NGN 93,651,950.

(ii) Payments made to Consultants, irrevocable Commitments with 3rd parties and recurrent Expenditure, rents and staff salaries (US $27,358,992)- NGN2,872,694,156.

(iii) Capital expenditure, Infrastructure, equipment and facilities (US $10,525,885 -NGN1,105,217.905.

(iv) Loss of profit-US $2,854,092,970. TOTAL US $DAMAGES- US$2,892,869,770 N442,609,074,810.00 at prevailing rate of =N=153.00 per US $ or

3

current equivalent)