Ise-Oluwa Ige
24 October 2009
Abuja — A Federal high court sitting in Abuja yesterday issued a preservative order stopping the Federal Government from taking any step towards selling the National Frequencies in the 2.3 GHZ Band, pending determination of an action brought by a telecommunication outfit, Mobitel.
The order followed an oral application by Mobitel.
The trial high court judge, Justice Garba Umar agreed with Dr Alex Izinyon who is the lead counsel for Mobitel that the order was necessary.
The Judge specifically ordered that parties should maintain status quo pending the hearing and determination of the motion for mandatory injunction dated the 20 th of October, 2009 and ajourned the case till the 17 th of November 2009 for hearing of the motion for mandatory injunction.
It would be recalled that the Federal Government had awarded the licence in question to Mobitel after it had fulfilled the conditions precedent including payment of about N1.4 Billion as prescribed by NCC.
But the Minister of Information and Communication, Professor Dora Akunyili on May 25, 2009 issued a letter cancelling the entire process leading to the issuance of the said license to Mobitel and other successful firms.
Following government's decision to reverse its agreement to sell the said license to Mobitel, the telecommunication firm through its legal team comprising Dr. Alex Aigbe Izinyon [SAN] and Damien Dodo [SAN] among others, commenced a lawsuit before the Abuja division of the Federal high court challenging the alleged contractual breach and prayed the court to compel government to abide by the terms of the contract.
In the action, Mobitel named the Information Minister, the Ministry of Information , the Attorney General of Federation and Nigerian Communications Commission [NCC] as respondents to the suit. According to Mobitel, the respondents lacked 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 NCC"
But even after the processes were lodged at the registry of the court, Mobitel was still afraid that the government could ignore the principle of lis pendens and go ahead to re_sell the licence.
The telecommunication firm therefore directed its lawyers to file an application for mandatory injunction restraining the government from selling the licence.
Unfortunately, when the matter came up yesterday, the application for mandatory injunction was not yet ripe for hearing.
Since the said 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] 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 foisted on it or the action is rendered academic.
Goddy Uche, Counsel to the government and Edwin Inegedu for NCC 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.
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