MTN Hires Kenna Partners to Challenge CBN’s $8.1bn Demand

The Federal High Court in Lagos has fixed December 4, 2018 for hearing in the suit filed by MTN Nigeria Communications Limited to challenge the $8,134,312,397.63 being demanded from the telecom firm by the Central Bank of Nigeria over alleged foreign exchange remittance infractions.

At Tuesday proceedings in the case, MTN was represented by Chief Wole Olanipekun (SAN), who led 14 other lawyers, including Prof. Fabian Ajogwu (SAN), Mr Damian Dodo (SAN), Mr Adeniyi Adegbonmire (SAN) and Mr Bode Olanipekun (SAN). On the CBN legal team were Messrs Seyi Sowemimo (SAN) and Ademola Akerele (SAN). The Attorney General of the Federation and Minister of Justice, Mr Abubakar Malami (SAN), who was joined as the 2nd defendant in the suit, was absent and was not represented in court.

While adjourning the suit till December 4 for the hearing of all pending applications, Justice Saliu Saidu directed that hearing notice should be served on the AGF. In the suit marked: FHC/L/CS/1475/2018, MTN is seeking a court declaration that it is “not liable to refund $8,134,312,397.63 to the coffers of the 1st defendant (CBN) premised on the decisions reached in the 1st defendant’s letter of 28/8/2018.”

The telecommunications giant is urging the court to declare that that “the 1st defendant’s decision in its letter of August 28, 2018 with Ref. No. GBD/GOV/COM/DGF/118/121 addressed to the plaintiff and titled, ‘Investigation into the remittance of foreign exchange on the basis of the illegal capital importation certificates issued to MTN Nigeria Communications Limited’ was reached in breach of the plaintiff’s right to fair hearing.”

The firm wants Justice Saidu to hold that the CBN “lacks the power to determine the civil obligations or penal liabilities of the plaintiff.” It is urging the court to declare that the CBN acted ultra vires its statutory powers when it wrote the August 28 letter to it demanding a refund of $8.1bn. The firm wants the court to hold that the $8.1bn demand is illegal, oppressive, abusive, unauthorised and unconstitutional.

It also wants the court to void the September 3, 2018 letter written to it by the AGF demanding $8.1bn as penalty for the offence of “infraction of forex remittances.” MTN is seeking a court order restraining the 1st and 2nd defendants from giving effect to the decisions, demands and directives in their letters of August 28,2018 and September 3, 2018, respectively.

However, the CBN, in its statement of defence and counter-claim, urged the judge to dismiss MTN’s suit, insisting that the telecommunications giant must refund $8.1bn to the Federal Government. The Attorney General of the Federation on his part has yet to file any defence. The dispute over $8.1bn repatriated funds started when the CBN alleged that MTN used improperly issued certificates of capital importation to transfer funds out of Nigeria after the telecom giant converted shareholders’ loans in its Nigerian unit to preference shares in 2007, but MTN denied the allegations.

The apex bank said MTN’s banks failed to verify that it had met all the country’s foreign exchange regulations.

SOURCE: Punch, 31 October, 2018.

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