Court Throws Out Etisalat Suit Challenging MTN’s Visafone Acquisition

Justice Ibrahim Buba of the Federal High Court in Lagos, yesterday, struck out a suit filed by Etisalat Nigeria Limited challenging MTN’s use of the 800megahertz (MHZ) spectrum following the acquisition of Visafone for lack of jurisdiction.

Buba held, while ruling on a preliminary objection filed by MTN, that Etisalat failed to fulfil the condition precedent as required by the Nigerian Communications Commission’s (NCC) Act by exhausting the judicial review process as mandated by law.

The court, which considered the suit as an attempt to circumvent the judicial review process, also held that it would amount to  interference if the court dabble into the responsibility of the NCC because the constitution states that the NCC shall have exclusive power to regulate the telecommunication sector.

The judge further held that Etisalat cannot challenge the acquisition of Visaphone by MTN because the regulator saddled with the responsibility to monitor and approve such sale is the NCC which is not joined as a party in this suit. He pointed out that there is an exhibit before the court showing the approval of the NCC for the sale. The judge stated that without the NCC joined as a party in the suit, it cannot stand as it was now.

Etisalat had, through its counsel, Femi Atoyebi, asked the court to declare that the sale of Visaphone to MTN illegal, and null and void, as it did not follow the proper procedure required by law.  But MTN, through its lawyer, Adeniyi Adegbomire, filed  a notice of preliminary objection, arguing that the court did not have jurisdiction to entertain the suit.

He argued that the NCC is empowered by constitution to approve,  regulate, sanction and issue directory on the operations of service providers in Nigeria.

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