LAGOS STATE LOSES CASE AGAINST TELECOM OPERATORS

Telecoms

Justice Ibrahim Auta of the Federal High Court, Lagos last week held that the Lagos State government has no right to impose on telecom operators in Lagos, the Lagos State Infrastructure Maintenance and Regulatory Agency Law 2004, which empowers the Lagos State Infrastructure Maintenance and Regulatory Agency (LASIMRA) to inspect and demolition or dismantling of mast, towers or antenna of the telecommunication operators.

Ruling on the suit, the court held that it had the jurisdiction to hear the suit and that Lagos State government was wrong to have imposed the regulation on the telecommunications operators.

The court noted that with the submission of the counsel to the plaintiff and the 5th respondent, it is obvious that the main aim for the enactment of the LASIMRA is 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 and that no state government can make any law which is supposed to be made by the National Assembly. He therefore entered judgment in favour of the Plaintiff.

LAIMRA authorises any officer of the agency to dismantle communication structures, inspect any infrastructure for the purpose of determining whether it complies with the provisions of the said law and take regulations, and prescribes fees to be paid to the agency by any telecommunications company in the state.

It would be recalled that Plaintiffs in the suit, Trustees of Association of Licensed Telecommunications Operators of Nigeria, Multilinks Telecommunications Ltd, Starcomms Ltd, ITN Independent Telephone Networks Ltd, VGC Communications Ltd, Teledom International Ltd and MTN Communication Ltd had dragged the Lagos State government before the court, praying it to declare as unconstitutional, null and void, the Law which authorises the agency to regulate telecommunication operations in the state.

They want the court to declare among others; that the State government, its AG, agents, servants and privies either jointly and severally do not have the power, authority or constitutional competence to enact the said law or any other legislation regulating either directly or indirectly telecommunication operations in any way whatsoever having regard to items no. 46, 66 and 68 of the Second Schedule, Part 1 of the Exclusive Legislative List and Section 4 of the 1999 Constitution.

The argument by the counsel for the operators, Mr. Demola Akinrele, SAN, is that the law clearly interferes with the National Assembly's exclusive control of matters pertaining to telecommunications in Nigeria.

He 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).

He argued 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, contending that the legal and practical effects of the said law is that the sate government, having given the power to dismantle communication structures, can effectively shut down communication, a development, which 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, and asserted 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 plaintiffs argument is that they have individually obtained all necessary licenses, permits and approvals for the operation of their telecommunications business in all parts of Nigeria including Lagos State from the NCC, an agency whose duty it is to regulate the issuance of licenses and general operation of telecommunications business in Nigeria.

They stated that the agency had reportedly threatened to shut down any telecommunications operator that fails to comply with the said Infrastructure Maintenance Law and argued that unless restrained, the agency in conjunction with the police is poised to disrupt telecommunication services in Lagos and other parts of Nigeria with serious negative consequences.

The counsel further 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, pointing out that these high charges amounted to a taxation on a matter within the exclusive legislative list which renders it unconstitutional.

Counsel to the Respondent, Attorney General of Lagos State, Professor Yemi Osinbajo, SAN, on his part contended that the Federal High Court has no jurisdiction to entertain the reliefs being sought by the plaintiffs.

He argued that the proper court is the Lagos High Court since the action complained of were either the act of Lagos House of Assembly or that of the Lagos state government, adding that to invite a Federal High Court to void an act of a State House of assembly amounted to inviting the court to act outside its jurisdiction.

On the charges imposed on operators, the AG argued that what the law requires them to pay is charges and rates and not taxation submitting that there is sanction for non-compliance with the law any where in the world.

This Day