Funso Muraina
25 October 2009
Abuja — A Federal High Court in Abuja on Friday barred the federal government from selling the National Frequencies in the 2.3 GHz Band, which the government had earlier awarded to Mobitel Limited, pending determination of an action brought by the telecommunication outfit.
Mobitel claimed it had fulfilled the condition precedent for the acquisition of the said license by paying about N1.4 billion as prescribed by National Communication Commission (NCC). But the Minister of Information and Communication, Professor Dora Akunyili, on May 25, issued a letter canceling the entire process leading to the issuance of the said license to Mobitel and other successful firms.
Following government's decision to renege on the agreement to sell the license to Mobitel, the telecommunication firm, through its legal team comprising Dr. Alex Aigbe Izinyon (SAN) and Damien Dodo (SAN), among others, initiated an action, challenging government's alleged contractual breach and prayed the court to compel the federal government to abide by the terms of the contract.
In the action, which named the information minister, the Ministry of Information, the Attorney General of Federation, NCC as first to fourth respondents, respectively, to the suit, the telecommunication outfit argued that "the 1st, 2nd and 3rd respondents lack the power, competence, authority and vires to issue the letter dated May 25, 2009 purporting to cancel or nullify the transparent licensing process carried out by the 4th respondent (NCC)."
Mobitel's counsel, Izinyon, applied for a mandatory injunction, seeking to bar government from re-awarding the said license to any other firm.
However, since the application was not ripe for hearing, Izinyon orally applied for a preservative order on the premise that it was necessary to preserve the subject matter of the plaintiff's action, which he submitted would be rendered nugatory if government was not restrained from re-awarding the said license for the National Frequencies in the 2.3 GHz Band. He said the court had a duty to suo muoto [on its own] to make a preservative order to protect the res [subject matter] of suit without waiting for a party to apply for it. He said the essence is to avoid a situation where a fait accompli is foist on it or the action is rendered academic.
Goddy Uche, Counsel to the 1st - 3rd Respondents and Edwin Inegedu for the 4th respondent opposed the oral application, saying there was no need why the Plaintiff would not wait for its formal application to be ripe for argument.
In his ruling, Justice Mohammed Garba Umar granted Izinyon's prayer, thereby ordering that no step should be taken by the government with regards to the said license until the suit had been determined. The Judge ordered as follows; That parties should maintain status quo pending the hearing and determination of the motion for mandatory injunction dated the 20th of October, 2009.
That this case is adjourned to the 17th of November 2009 for hearing of the motion for mandatory injunction.
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