allAfrica.com: Nigeria: Again, Lagos Loses Appeal to Telecoms Firms (Page 1 of 2)

The Court of Appeal sitting in Lagos has dismissed the appeal filed by the Lagos State government against the telecommunications firm under the auspices of the Association of Telecommunication Operators of Nigeria (ALTON).

In her ruling, presiding judge, Justice Clara Ogunbiyi, held that the prayer for stay of execution sought by the appellant was incompetent having regard to the fact that it did not first apply to the High Court who gave the judgment before applying to the Court of Appeal and did not disclose any impracticable reason why the application was made to the Court of Appeal in the first instance.

Justice Ogunbiyi after reviewing the facts deposed to in support of the application for injunction, concluded that although the Appellant had an arguable appeal, the balance of convenience was in favour of the Respondents who would suffer more if the injunction was granted.

The judge further the court held that the conduct of the Appellant/Applicant was not deserving of the protective order of an injunction because they slept on their rights for a long period of nine months after the judgement before filing their application

She noted that the prayer for injunction is competent as the Court has the power to entertain direct applications for injunction once an appeal is pending, adding that the Respondents had a subsisting judgment in their favour and are entitled to enjoy the fruits of their judgment pending when the judgement is reversed.

"The Appellant would only suffer loss of revenue which can be sufficiently compensated by the Respondents in damages if it wins the appeal", she said.

The Lagos State Government had appealed against the 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 dismount 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, but added that since telecommunication operations is under the Exclusive legislative list, no state government can make any law which is supposed to made by the National Assembly.

In the substantive 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 which pose an obvious danger to the people of the state.

According to counsel to the state government, Mr. Lawal Pedro, 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 in that the state government should have applied first to the Federal High Court.

He submitted further 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 finally submitted 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 recognizes the supremacy of the constitution, and 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).

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