The Federal High Court, sitting in Jalingo yesterday 19.06.18 delivered judgment in favour of ATC Nigeria Wireless Infrastructure Ltd in a suit instituted against the Attorney General of Taraba State; the Taraba State Environmental Protection Agency and the Nigeria Security and Civil Defence Corps (NSCDC). In the judgment, the court voided the Taraba State Environmental Protraction Agency Law to the extent of its inconsistency with the Constitution.
The suit bordered on demands running into several hundreds of millions of naira by Taraba State Government from ATC, for levies and rates relating to: health; safety; and environment issues. The crux of the case was that the demands of the State Government were made pursuant to the provisions of the Taraba State Environmental Protection Agency Law (TEPA Law). While the provisions of the TEPA Law appeared clear, the provisions that grounded the demands were matters clearly within the ambit of federal laws such as the Nigerian Communications Act (NCC Act) and provisions of the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007 (NESREA Act) (including regulations made pursuant thereto). In light of the conflict, ATC’s claims that the provisions of the TEPA Law were ultra vires and accordingly null and void – including the demands were upheld by the Court.
From an economic perspective, the approach by many states of the Federation to proceed against tower companies, reflect a negative expression of revenue generation which has begun to stymie the ease of doing business environment in many states. Increasingly, companies who are perceived to have deep pockets are forced into a situation where they excessive demands are made of them on questionable grounds – extortion!, particularly as elections are fast approaching.
Accordingly, this decision by the Federal High Court is not only a brave decision, but a breath of fresh air. It is refreshing to see the Court even against the weight of political pressure, uphold the Constitution and prevent the continued harassment of companies, on the basis of laws which are, in simple terms, unconstitutional.
In an adversarial system of law such as Nigeria’s, the significance of Counsel cannot be overstated. In leading the team, Mr. Ogunmuyiwa Balogun from the law firm of Olaniwun Ajayi LP marshalled clear arguments that demonstrated not only an awareness of the provisions of the Constitution, but also the impact upon which the departure from the Constitution, in making laws beyond the scope thereof have on businesses in the Country, and also on the economy of Nigeria. More of such courageous lawyers should be encouraged.