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Nigeria: Appeal Court Reserves Judgment On Telecoms Suit
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This Day (Lagos)
14 May 2008
Posted to the web 15 May 2008
Davidson Iriekpen
Lagos
The Court of Appeal in Lagos last Tuesday reserved judgment on an appeal filed by the Lagos State government against the Registered Trustee of Association of Telecommunication Operators of Nigeria (ALTON).
At the resumed hearing of the appeal, Justice Clara Ogunbiyi, who presided over the sitting with two other appeal court judges noted that in the interest of justice, the matter will be given speedy attention.
In the suit, the Lagos State government is seeking for an order of interlocutory injunction restraining the telecommunication companies from further erecting or installing masts, towers, cables or any network facility through, under, across, over any land or public right of way or structure in Lagos State without the approval of Lagos State government as required by law, pending the hearing and determination of the appeal filed against the judgment of the lower court.
According to the Lagos State government, the infrastructure maintenance law is an essential component of the State's Town Planning Scheme. It believes that as a government, it cannot stand idle bye while all sort of structures pose an obvious danger to the people of the state.
Counsel to the state government, Mr. Lawal Pedro said the state government has continued to receive complaints from members of the public against the indiscriminate erection and installation of mast and tower.
But counsel to ALTON, Mr. 'Demola Akinrele, SAN argued that the application for stay was premature stressing that the state government should have applied first to the Federal High Court.
He submitted that the appellate court only has jurisdiction to entertain the application for stay if the applicant proved special circumstances, which make it impracticable to go before the Lower Court. He concluded that they have failed to establish such circumstances in their affidavit.
He further submitted that being a declaratory judgment, which declared the law void it was incapable of being stayed.
He said that the reasons contained in the affidavit in support of the application for stay went beyond the grounds of appeal and the judgment of the lower court and therefore the application should be dismissed.
Akinrele cited Section 4 (2) of the 1999 Constitution, which gives the National Assembly power to make laws with respect to matters included in the Exclusive Legislative List and Section 1 (1), which recognises the supremacy of the constitution. He argued that the provisions of the said law overlaps and undermines the powers of the Federal Government under the Constitution and encroaches on the powers conferred on the Nigerian Communications Commission (NCC).
He maintained that the Infrastructure Law on the face of it appears to be a law of general application to utility providers with regard to urban planning when in reality it is a law that interferes and regulates telecommunications operations.
He contended that the legal and practical effect of the said law is that the sate government, having given the power to dismantle communication structures, can effectively shut down communication.
This development, he noted, would have consequences outside Lagos, as subscribers would be prevented from communicating with each order.
He queried whether a state government could have the power to dismantle communication structure and thus affect other states outside it jurisdiction, asserting that if the 36 states of the federation under the guise of urban and regional planning enacted 36 respective laws empowering their agencies to dismantle communication structure there would be anarchy and chaos in the industry.
The counsel submitted that the charges imposed on the telecommunications operators under the said enactment could amount to N1 billion in the case of some operators and N400million in the case of other operators annually.
He pointed out that these high charges amounted to taxation on a matter within the exclusive legislative list, which renders it unconstitutional.
On his part, counsel to the Nigerian Communications Commission (NCC), Mr. Paul Usoro, SAN, agreed with Mr. Akinrele's submission.
He added further by reference to case law that a court cannot stay execution or grant an injunction over an act which has been declared illegal by the Lower Court.
He said that granting the relieves contained in the application would amount to determining the substantive relief in the appeal and urge the court to refuse the application.
The Lagos State Government had appealed against this decision of Justice Ibrahim Auta of the Federal High Court in Lagos, which in April 2007, declared that the Lagos State Infrastructure Maintenance Regulatory Agency Law 2004 was unconstitutional on the grounds that since it bordered on telecommunications, which can only be regulated by the National Assembly and was outside the legislative competence of the State House of Assembly.
The judge held that state government does not have the right to impose on telecommunication operators in Lagos, adding that Lagos State Infrastructure Maintenance and Regulatory Agency (LASIMRA) does not have the power to inspect and demolish or dismantle masts, towers or antennae of the telecommunication operators.
Justice Auta noted that with the submission of the counsel to the state government, it was obvious that the main aim for the enactment of the Infrastructure Maintenance Law was to generate revenue for the Lagos State government by taxing the telecoms operators indirectly.
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He added that since telecommunication operations is under the Exclusive legislative list, no state government can make any law which is supposed to be made by the National Assembly.
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