Court declines to bar MTN from emptying bank accounts

Justice Idris Mohammed of a Federal High Court sitting in Lagos yesterday refused to grant an application of mareva injunction seeking to bar MTN Nigeria Communications Limited from emptying its accounts in 21 commercial banks in the country.

The presiding judge said the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), has not shown enough facts to prove that the telecommunication company (MTN) was about to empty its bank accounts and move its funds out of the country.

Malami filed the application to prevent MTN from boycotting the payment of the N1.04tn fine imposed on it by the Nigerian Communications Commission (NCC) for its failure to deactivate its unregistered subscribers.

In the application, the AGF expressed the fear that MTN could move all its funds out of the country before the N1.04tn fine could be enforced. He therefore prayed for an order directing all the 21 banks to open a special interest-yielding account in the name of the Chief Registrar of the Federal High Court and move N1.04tr out of whatever funds that was standing to MTN’s credit in their possession.

Counsel to the AGF, Dipo Okpeseyi (SAN), in a 14-paragraph affidavit deposed to by one Steve Nwabueze, had argued that MTN was in the habit of regularly repatriating its funds out of Nigeria. He averred that between October 2007 and May 2009, a period of 19 months, MTN moved over $7.7billion of the money made in Nigeria to a foreign account.

He further pointed the court’s attention to an instance when in one day, specifically on February 8, 2008, MTN transferred over $936 million out of Nigeria to accounts in Mauritius, Cayman Island and British Virgin Island.
“Unless this honourable court urgently entertains this application, the plaintiff/respondent would move its funds out of Nigeria, being the jurisdiction of this court, and thereby frustrate the enforcement of the fine in the likely event that this court sanctions the imposition of the fine.”

Okpeseyi argued that MTN is under an obligation to pay the N1.04tr fine, because it is NCC’s administrative decision, which remains final unless it is reviewed by the commission or nullified by the court. He further stated that though NCC had earlier given MTN a concession on the fine and reduced it to N780 billion, since the company has neglected the concession or failed to pay on or before December 31, 2015, the fine remains N1.04tr.

The judge, after listening to Okpeseyi’s submission, said that the case was sensitive and of public interest. He noted he would rather urgently hear the case filed by MTN to challenge the fine and give a judgment within a short time.

Justice Idris therefore made an order for the parties to maintain status quo ante bellum pending the determination of the suit the hearing of which he adjourned till January 22, 2016.