NCC fine on MTN – why it ought to be N520 million and not N1.04 trillion
In this article, I argue that the recent fine imposed on MTN by the Nigerian Communications Commission (“the NCC”) on MTN pursuant to the provisions of the Nigerian Communications Commission (Registration of Telephone Subscribers) Regulations, 2011, is null and void to the extent that it conflicts with Section 12 (1) (c) of the Interpretation Act.
Recall the fine/penalty in the sum of N1.04 Trillion (One Trillion and Forty Billion Naira) recently imposed by the NCC on MTN, the Mobile Telecommunications Network. The said network was penalized allegedly for contravening Regulation 19 and 20(1) of the Nigerian Communications Commission (Registration of Telephone Subscribers) Regulations, 2011, the latter of which provides as follows:
“Any licencee who activates or fails to deactivate a subscription medium in violation of any provision of these Regulations is liable to a penalty of N200,000 for each unregistered but activated subscription medium”
The basis of assessment of the fine/penalty was the alleged number of irregularly registered or unregistered subscribers on MTN’s network, which, according to the NCC, was 5.2 Million (Five Million, Two Hundred Thousand). Therefore, to arrive at the fine/penalty, the Commission simply multiplied the said sum of N200, 000 (two hundred thousand naira) per subscriber, as provided in Section 20(1) of the Regulations, by the alleged total number of subscribers (5.2 million), as aforesaid.
I believe that NCC was remiss to have applied the said provisions of the Regulations in arriving at the said fine/penalty. The reason is simple: to the extent that the said Regulations are a subsidiary legislation (having been made pursuant to Section 70(1)(c) of the Nigerian Communications Act, 2003), by virtue of Section 12(1)(c) of the Interpretation Act, Cap.123, LFN 2004, the maximum fine which the NCC may impose for any violation/contravention of said Regulations is the sum of N100 (one hundred naira). For ease of reference, the said provision of the Interpretation Act reads:
“Where an Act confers a power to make a subsidiary instrument, proclamation or notification, the power shall include, in the case of a subsidiary instrument, power to prescribe punishment for contraventions of provisions of the instrument, not exceeding as respects a particular contravention–
(i) In the case of rules of court, imprisonment for a term of three months or a fine of fifty naira or both:
(ii) In any other case, imprisonment for a term of six months or a fine of one hundred naira or both”(emphasis supplied).
There is no doubt that the Nigeria Communications Commission (Registration of Telephone Subscribers) Regulations 2011 is a subsidiary instrument within the meaning of Sections 12(1)(c)& 37(1) of the Interpretation Act, the latter of which defines “subsidiary instrument” as:
“Any order, rules, regulations, rules of court or by-laws, made either before or after the commencement of this Act, in exercise of powers conferred by an Act” (emphasis supplied).
There is equally no question that the Interpretation Act, Cap. 123, LFN 2004 binds the State, including the Nigerian Communications Commission: See Section 37(1) of the Act.
That being the case, I humbly submit that the question is whether the said fine imposed by NCC on MTN is justified having regard to any law in Nigeria, particularly, but not limited to the said provisions of the Interpretation Act, the NCC Act itself, and indeed the Constitution which is Supreme. In answering this question, I believe an overview of both the NCC Act and the Regulations would be apposite.
The Nigeria Communications Commission (Registration of Telephone Subscribers) Regulations were made by the then Executive Vice-Chairman of the NCC, Dr. Eugene Juwah and took effect from the 3rd day of November 2011 (see Statutory Instrument No. 35 of 2011 published as a Supplement to the Official Gazette of the Federal Republic of Nigeria No. 101, Vol. 98 of 7th November 2011). The Regulations were made pursuant to powers conferred on the Commission by Section 70(1)(c) of the Nigeria Communications Act, 2003, Cap. N97, LFN 2010, which provide thus:
“The Commission may make and publish regulations for all or any of the following issues. . . any fees, charges, rates or fines to be imposed pursuant to or under this Act or its subsidiary legislation”
It is evident that these provisions of the Act are couched in broad and general terms, as they are merely enabling provisions. The said Regulations on the other hand, are very specific, relating as they do, to the modalities and mechanisms for registering telephone subscribers in Nigeria. To that extent, the provisions of the Regulations are special. It is trite law that:
“where there are two enactments, one making specific provisions and the other general provisions, the specific provisions are impliedly excluded from the general provisions”: See, Attorney-General of the Fed. vs. Abubakar (2007) All FWLR pt. 375 pg. 405 @ 472E per Onu, JSC.
It is important to point this out, given that Sections 55 & 65(1) of the Nigeria Communications Act 2003 provide as follows respectively:
– “Without prejudice to any other provision of this Act or a licence condition, a person who fails to comply with a direction of the commission shall be liable to the payment of a fine to the Commission in such amount as the Commission may at its discretion impose” (emphasis supplied).
– “Notwithstanding the provisions of Section 55 of this Act, a person who is subject to this Act & who fails to comply with a direction of the Commission under this part shall be liable to the payment of a fine to the Commission in such amount as the Commission may at its discretion impose”(emphasis supplied).
In any event, the Commission did not purport to act under either of the foregoing provisions of the Act in imposing the fine on MTN, but rather under Regulations 19(1) and 20(1) of the Registration of Telephone Subscribers 2011 as aforesaid. To that extent, it lies ill in the mouth of the Commission to claim otherwise, as it is estopped from doing so. This is because of the circumstances which preceded the present status quo, MTN and other networks having altered their positions to their detriment on the strength of the said representation by NCC that the Regulations govern the registration of telephone subscribers in Nigeria.
I refer to Nangibo vs. Okafor (2003) FWLR pt. 171 pg. 1529 @ 1549C per Onu, JSC, where the Supreme Court held that:
“Statutes which purport to deprive citizens of their proprietary interest as well as acquired rights are always interpreted strictly. In effect, such statutes are construed fortissime contra proferentes. See Maxwell on Interpretation of Statutes, 12th edition, page 258 where it was stated:
“Where a statute confers a power, particularly one which may be used to deprive the subject of proprietary rights, the courts confine those exercising the power to the strict letter of the statute”
In the light of the foregoing, I humbly submit that the NCC acted ultra vires to have empowered itself vide the said Regulations, to impose fines/penalties in excess of the sum of N100 (one hundred naira) provided in Section 12(1)(c) of the Interpretation Act. This is because, as previously submitted, the said Regulations are but a subsidiary legislation, and it is trite law that a subsidiary legislation cannot contradict or over-ride the law: Akanni vs. Odejide (2004)All FWLR pt. 218 pg. 827 @ 853; Kennedy vs. INEC (2009)1 NWLR pt. 1123 pg. 614 @ 642D.
SUMMARY AND CONCLUSION
I submit that the correct approach to appraising the legitimacy/validity of the said fine/penalty imposed by the NCC on MTN is to dispassionately construe the provisions of the aforesaid statutes, that is to say:-
(i) Sections 12(1)(c), and 37(1)&(3) of the Interpretation Act;
(ii) Section 70 of the Nigeria Communications Act, 2007; and
(iii) Regulations 19 to 21 of the Nigeria Communications Commission (Registration of Telephone Subscribers) Regulations 2011
I submit that if this is done, the irresistible conclusion would be that, so long as the Interpretation Act binds the State – including its organs and agents, such as the NCC – its provisions, which were enacted by the National Assembly, are superior to and override those of the Regulations, which are inferior to the Act, given that they are a subsidiary legislation. Accordingly, I submit that the correct formula to be applied in determining the size of the fine/penalty for MTN’s admitted contravention of the Regulations is as provided in Section 12(1)(c) of the Interpretation Act, i.e. the sum of N100 per subscriber. Multiplying this figure by the 5.2 Million allegedly irregularly registered or unregistered subscribers on MTN’s network, will give the sum of N520 Million (Five Hundred and Twenty Million Naira).This, I humbly submit, is the correct size of the fine which NCC ought to have imposed on MTN.
Abubakar D. Sani, Esq
Abubakar D. Sani, Esq. Barrister-at-Law, is an Abuja based Legal Practitioner