13 January 2016

Nigeria: Court Rejects FG's Application to Freeze MTN's Accounts

Photo: Premium Times
MTN Nigeria.

Justice Idris Mohammed of the Federal High Court in Lagos on Tuesday turned down an application from the federal government seeking to freeze the accounts of MTN Nigeria Communications Limited in Nigeria.

The application, by way of a mareva injunction, was targeted at barring MTN from emptying its accounts in 21 commercial banks in the country and preventing the telecoms giant from boycotting the payment of the N1.04 trillion fine imposed on it by the Nigerian Communications Commission (NCC) for its failure to deactivate its unregistered subscribers.

The Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), who filed the application yesterday, expressed concern that MTN could move all of its funds out of the country before the fine is enforced.

He therefore sought an order directing all the 21 banks to open a special interest-yielding account in the name of the Chief Registrar of the Federal High Court and move N1.04 trillion out of whatever funds that is standing to MTN's credit in their possession. Counsel to the AGF, Mr. Dipo Okpeseyi (SAN), in a 14-paragraph affidavit deposed to by his junior, Steve Nwabueze, argued that MTN was in the habit of repatriating its funds out of Nigeria.

He revealed that between October 2007 and May 2009, a period of 19 months, MTN moved repatriated $7.7 billion made in Nigeria to a foreign account.

He further drew the court's attention to an instance when in one day, specifically on February 8, 2008, MTN transferred over $936 million out of Nigeria to accounts in Mauritius, Cayman Island and the British Virgin Islands.

"Unless this honourable court urgently entertains this application, the plaintiff/respondent would move its funds out of Nigeria, being the jurisdiction of this honourable court, and thereby frustrate the enforcement of the fine in the likely event that this honourable court sanctions the imposition of the fine," the AGF's counsel said.

Okpeseyi maintained that MTN was under obligation to pay the fine, because it was NCC's administrative decision that remained final unless it was reviewed by the commission or nullified by the court.

He said though NCC had given MTN a concession on the fine and reduced it to N780 billion but MTN had neglected or failed to pay on or before the December 31, 2015 deadline, the fine remained N1.04 trillion.

He alleged that instead of taking advantage of the concession, MTN resorted to filing a suit in order to buy time, in the hope that it could move all of its funds out of Nigeria before the case is decided.

Okpeseyi urged the court to grant the application in the interest of justice to prevent the court's decision from being rendered nugatory if it went in the favour of NCC and AGF.

But Justice Mohammed turned down the application, stating that the AGF had not shown enough facts to prove that MTN was about to empty its bank accounts and move its funds out of the country.

Mohammed, who noted that the case was sensitive and of public interest, said he would rather urgently hear the case filed by MTN to challenge the fine and give a judgment within a short time.

He, however, made an order for the parties to maintain status quo ante bellum pending the determination of the suit and adjourned the case to January 22, 2016 for hearing.

MTN had assembled seven Senior Advocates of Nigeria (SAN) comprising Chief Wole Olanipekun, Prof. Fabian Ajogwu, Babatunde Fagbohunlu and others, to challenge the N1.04 trillion fine imposed on it by NCC.

The company contended that NCC could not act pursuant to Section 70 of its establishment Act to impose the fine on it. But Malami, who took sides with the NCC and justified the imposition of the fine, said it was his duty as the chief law enforcement officer in the country to ensure that all the laws made by the National Assembly are obeyed.

More on This

FG Loses Bid to Stop MTN From Moving Funds Out of Nigeria

Justice Mohammed Idris of the Federal High Court in Lagos yesterday refused to grant an application of mareva injunction… Read more »

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