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GE and limits of Audacity

11 Dec 2012

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Edifying Elucidations By Okey Ikechukwu. Email, okey.ikechukwu@thisdaylive.com

The Federal Government needs to send clear and strong signals to foreign firms doing sundry business in Nigeria about how to conduct themselves in the public space offered them within the country. The British Airways was carrying on with incredible airs around here, routinely taking liberties with the fares they charge and their shoddy customer relations, until it was rattled by the authorities. When the nation said “enough” a few things changed. But a tradition of treating Nigerians with contempt, as well as regarding the institutions of state with patronising indifference, has become part of the raw materials for ‘working in Nigeria’. The latest issue on the table is the unparalleled impunity of General Electric (GE), an American firm, which has been doing business in Nigeria for many years.

Some two years ago, GE was sued by another firm, Q Oil & Services Limited, for breach of contract at the Rivers State High Court. General Electric was duly served the court summons on April 26, 2010, but it ignored the summons. The reasonable inference from the fact that GE
filed no response – or reply to the issues raised – is that it held the court process in contempt. Expectedly, following lawful court processes, the aggrieved firm (plaintiff) filed a motion for judgment. Because GE was duly served the by the court, and also given that it ignored the court process without any extenuating explanations, the aggrieved firm was allowed to argue its motion by the trial judge. An unopposed motion before a court of competent jurisdiction is what resulted in the judgment given in favour of the aggrieved in the sum of $5.1 million.

Then GE woke up and filed an appeal at the Port Harcourt Division of the Court of Appeal, asking for a stay of execution of the judgment of the lower High Court. The trial judge, on conditions given by GE itself, granted this application. This condition is that it (GE) would produce a bank guarantee covering the judgment sum together with interests. But GE did not produce the bank guarantee as ordered by the trial court on December 14, 2010. Then GE filed applications before the Court of Appeal for the vacation of the conditional stay on three occasions – all dismissed by Court of Appeal.

With GE reportedly frustrating all efforts by the plaintiff to enforce the subsisting judgment of the court, the latter filed a motion for the enforcement of the judgment in a Circuit Court in Michigan, United States. Law is law, and the point of taking the matter to the jurisdiction of GE brings out a perspective on the global issues in judicial processes. Rising to defend itself in Michigan, GE calmly asked the US court to ignore the judgment on the ground that the Nigerian judiciary is corrupt. The collateral submission is that it is the duty of the Michigan court, and the US judicial system to consider every judgment from the Nigerian judiciary to be replete with questionable influences and considerations.

The action of the US-based GE is only representative of what the nation allows itself to put up with, from organisations that thrive on its offerings. Now that the issue is in the public domain, GE has woken up to the implications of its statement and has issued a statement
contradicting its legal position in a US court. Has GE formally withdrawn the affidavit in the US court? If not, what is the meaning of its recent statement expressing confidence in the Nigerian judiciary?

Before the Mast Comes down

Eddie Iroh’s intervention on the misery of GSM users in Nigeria,
captured a poignant point that the MTN Corporate Affairs Department did a miserable job of responding to. The challenges facing GSM service providers are real, but it is insulting to make their case as if they are running a charity in Nigeria. But for the crisis of credibility and process surrounding a problem currently facing Airtel, another GSM service provider of questionable credentials, one would not want to be associated with anything that seems to make a case for our telecoms service providers. But the matter at hand may yet yield more torment for its customers, so it is an issue that deserves the personal attention of the FCT Minister.

The said GSM firm was recently constrained to retain a firm of lawyers to help it deal with its challenges in the provision of services within the FCT and its environs. The substance of the issues can be summarised as follows: The FCT grants a ‘temporary/provisional licence’ through the Department of Development Control (DDC) to firms, upon an application for land to construct its mast. The letter granting this temporary licence also advises the firm, or GSM service provider to pay fees and ground rent, as well as ensure that it secures a permanent title over the allocated site from Abuja Geographical Information Systems (AGIS), this is the FCDA Department empowered by law to allocate land to applicants.

But the firm, rather than quickly get a permanent title in the form of a certificate of occupancy from AGIS as advised in its letter, discovers that “the law does not recognise a mast site as part of ‘land use’. So the application is denied. Meanwhile the firm has been paying ground rent and licence fees to DDC. Then there is this recent development, whereby AGIS subsequently issues certificates of occupancy (C of O) over the same plots (as commercial land) to third parties.

And these are the very plots hosting the masts constructed, based on the provisional licences granted them by DDC. This is notwithstanding the fact of the firm having been present on the land for almost 10 years, based on these provisional licences.
Some ‘fortunate’ service provider may be compelled to pay exorbitant fees, under lease agreements to the said third parties. This is in addition to the ground rent and the licence fees to the DDC. In the case of Airtel, the third party is NOT willing to lease or sell the land. It has to quit by dismantling its mast, or have it dismantled by the DDC, at its cost. The threatened mast hosts the hub of Airtel network operations around the airport area. The Helios Tower, which hosts other networks, is also on the same piece of land. It was once a green area and apparently not meant to be allotted to any third party.

It is alleged that the third party allottee has been granted the land to construct a commercial filling station, with already approved drawing plans. The masts need to go because they are not accommodated by the drawings. These plans cannot accommodate the mast or the tower, so both have to be brought down.  To dismantle the Airtel is to wreak its (not very impressive) service around the airport to the Lugbe area. This will not be restored until it is able to find another piece of land, on which it may still be granted yet another provisional licence; to construct a new mast at substantial cost. But that is when it is able to find yet another piece of land secured by a ‘provisional licence’. This temporary permit means that it will still be denied a permanent title.

Despite the fact that both DDC and AGIS are Departments of the FCDA, it seems that AGIS is unaware of the coordinates of the mast sites and, therefore, cannot take into account certain parameters in granting permanent title to third parties. But nobody will give you a letter stating that AGIS does not grant permanent title for masts. Meanwhile, the DDC wants ‘hard evidence’ that applications for mast land have been denied, when AGIS will not state its refusal in writing.

The NCC knows all this and should liaise with the minister for a quick solution, especially since attempts to intervene have been rebuffed by the DDC, on the pretext that the third party allocations are permanent titles; and that approvals for the building plans are final and have to be respected. So welcome to a situation where service providers are issued valid ‘provisional licences’, but are verbally denied permanent titles, after they have expended substantial costs in erecting masts and have been paying due rent and fees diligently over the years, remains immaterial.

This scenario is escalating and there may be enough service providers in the line of fire to bring about a conflagration of ‘network’ dimensions in a land that is already distinguished by the poor performance of GSM service providers who provide excellent services in other climes. The claim is that there is a cabal (that word again) working to colonise all high rent lands and run a virtual rent industry that may be higher than oil. True or not, the issue here is to streamline the administrative issues and deny GSM service providers any opportunity for scapegoating. The services were not particularly wonderful when no one was even eyeing the masts.

Tags: Audacity, Backpage, Featured, GE

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