KEMI OMONIYI
LAGOS, Nigeria – A Federal High Court, Ikoyi, Lagos, has restrained a Nigerian telecommunications giant, MTN Nigeria Communications Plc and its associate, the ATC Nigeria Wireless Infrastructure Ltd, a fully owned subsidiary of the US based American Tower, from overcrowding the environment with base stations pending the determination of the motion on notice for interlocutory injunction.
His Lordship, Hon Justice Y Bogoro initially issued the order on Tuesday, 21 November, 2023 and reaffirmed it on Thursday, 7 December, 2023 when the case of HEDA vs FMEEM & 4 Ors, with suit number FHC/L/CS/2359/2023, came up for hearing.
HEDA Resource Centre, a Nigerian civil society group active in promoting sustainable development and protection of the environment, in what it termed a public interest case, had gone to the court to request for an injunction to stop MTN Nigeria and ATC Nigeria from siting new base stations where there are already existing base stations in close proximity citing health and environmental concerns.
In the court sitting, the presiding judge upheld the prayers of the plaintiff/applicant, the Incorporated Trustees of the HEDA Resource Centre and ordered the 4th and 5th Defendants, ATC Nigeria Wireless Infrastructure Ltd and MTN Nigeria Communications Plc respectively, together with their “servants, agents, privies and/or assigns from commencing, continuing or completing the construction or erection or installation of any base trans-receiver stations/towers/masts (BTS) within close proximity to IHS’ existing BTS or operating any BTS within close proximity to IHS’ existing BTS pending the determination of the motion on notice for interlocutory injunction.”
The judge also ordered the “5th Defendant, (MTN Nigeria Communications Plc) whether by its servants, agents, privies and/or assigns from moving, relocating, transferring any of its telecommunication equipment to any BTS site being or has been constructed, erected or built by the 4th Defendant (ATC Nigeria Wireless Infrastructure Ltd), which is in close proximity to the IHS’ existing BTS pending the determination of the motion on notice for interlocutory injunction.”
This effectively puts on hold the implementation of the relocation of 2,500 towers project from IHS to ATC announced by MTN recently until the judge further hears from the parties on the 14th of February 2024.
In the later proceedings of Thursday 7th December 2023, the counsel to MTN Nigeria, Prof Fabian Ajogwu SAN, moved his motion to set aside the ex parte order and filed a Further Affidavit and Reply to HEDA’s Counter-Affidavit.
Also, the counsel to ATC Nigeria Wireless Infrastructure Ltd, Nicholas Okafor of Udo Udoma & Belo-Osagie sought to move his preliminary objection which he filed the previous day but the court did not hear it as there was no proof that the said motion was served on the plaintiff/applicant or any other party in the suit.
Mr Kunle Adegoke, SAN, representing HEDA urged the court to direct all parties to the dispute to maintain status quo ante pending the rulings of the court and the court directed counsels to all the other parties to prevail on their clients on the need to maintain status quo. Responding, Prof Ajogwu argued that he is law abiding but HEDA’s counsel responded that the concern is not with counsel but their clients – MTN and ATC – who the NGO suspects is proceeding with work despite the injunctive order.
The hearing was subsequently adjourned till the 14 February, 2024 for further consideration.
According to Adegoke SAN, the ruling of the Federal High Court is in favour of people’s health and environmental sustainability. He noted that these are the major reasons the Nigerian Communications Commission (NCC) and the National Environmental Standards and Regulations Enforcement Agency (NESREA) set up a set of guidelines for the location of base stations by telecommunication operators and infrastructure companies.
He explained that, going by the ruling, the ex parte injunctions subsist, at least, till 14 February 2024 when the court is expected to rule on the motions pending before it.
