Davidson Iriekpen
A Federal High Court in Lagos yesterday struck out the suit filed by a telecoms company, Etisalat, challenging the acquisition of Visafone by MTN and its use of the 800megahertz (MHZ) spectrum following the acquisition of the CDMA telco.

Justice Ibrahim Buba struck out the suit on the grounds that the court lacked the jurisdiction to entertain the suit.

The court held that Etisalat cannot challenge the acquisition of Visafone by MTN because the regulatory agency saddled with the responsibility of monitoring and approving such sale is Nigerian Communication Commission (NCC) which was not joined as a party in this suit.

The court stated that it would amount to interference if it dabbled into the responsibility of NCC because the constitution states that the NCC shall have exclusive power to regulate telecommunications sector.
Justice Buba pointed out that there was an exhibit before the court showing the approval of the NCC for the sale of Visafone to MTN.

The court held that without NCC being joined as a party in this suit, the suit can not stand as it was now.
The applicant, Etisalat, through their counsel, Mr. Femi Atoyebi (SAN), had in the suit prayed the court to declare the sale of Visafone to MTN as illegal, null and void as it did not follow the proper procedure as required by law.
Etisalat Nigeria had sued MTN Nigeria and Visafone, challenging MTN’s use of the 800megahertz (MHZ) spectrum following the acquisition of Visafone.

Etisalat said it considered the action necessary to prevent the use of the spectrum by MTN at this time, as it would entrench the dominance of MTN in the retail data services market.
“You will recall that MTN Nigeria was declared dominant by the NCC in 2013 and remains dominant in the wholesale leased line and retail voice markets.

“The use of the 800MHz spectrum to deploy broadband services ahead of its competitors, particularly those who prior to MTNs purchase of Visafone, held similar spectrum bands as MTN, will further entrench MTN’s dominance in the Nigerian telecommunications sector,” Etisalat stated.

But the respondent, MTN, through its counsel, Mr. Adeniyi Adegbomire, filed a notice of preliminary objection, arguing that court did not have jurisdiction to entertain the suit.
He argued that NCC is empowered by the constitution to approve, regulate, sanction and issue directory on the operation of service provider in Nigeria.