Thursday, May 13, 2021

$8.1b MTN fine: Court adopts settlement terms as judgment

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The Federal High Court in Lagos yesterday adopted the settlement terms in a suit by MTN Nigeria Communications Limited against the Federal Government.

MTN challenged the $8,134,312,397.63 demanded from it by the Central Bank of Nigeria (CBN) over alleged forex remittance infractions.

But the telecoms firm prayed the court to restrain the CBN and the Attorney-General of the Federation (AGF) from imposing punitive sanctions against it.

The CBN accused MTN Nigeria of improper dividend repatriations and demanded that $8.1 billion be returned “to the coffers of the CBN”.

Yesterday, MTN’s lawyer, Chief Wole Olanipekun Senior Advocates of Nigeria (SAN), who led other SANs Mr Damian Dodo, Fabian Ajokwu and Adeniyi Adegbonmire, told Justice Saliu Saidu that parties have resolved the dispute amicably.

He said the terms of settlement were filed last December 28.

CBN’s counsel Henry Ejiofor confirmed the out-of-court settlement by the parties.

He urged the court to enter the terms of settlement as judgment.

The AGF, represented Olanike Idenu, did not oppose the settlement proposal.

He asked that his client’s name be struck out from the suit.

Justice Saidu thanked the parties for not wasting judicial time by going through the rigour of a trial.

He adopted the terms of settlement terms as the judgment of court and struck out the AGF’s name from the suit.

The Federal Government accused MTN of unpaid taxes on foreign payments and imports, asking it to pay approximately $2 billion in relation to the taxes.

According to the CBN, MTN and four banks – Standard Chartered Bank, Citi Bank, Stanbic IBTC Bank and Diamond Bank – deliberately flouted the “laws and regulations…including the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, 1995 and the Foreign Exchange Manual, 2006.”

The banks allegedly colluded with MTN, using irregular Certificates of Capital Importation (CCI), to illegally remit foreign exchange abroad.

The four banks were slammed a combined N5.87 billion fine.

MTN had denied the allegations and subsequently filed the suit.

It sought a declaration that it was “not liable to refund $8,134,312,397.63 to the coffers of the first defendant (CBN) premised on the decisions reached in the first defendant’s letter of 28/8/2018.”

It is prayed the court to declare that “the first 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 plaintiff urged Justice Saidu to hold that CBN “lacks the power to determine the civil obligations or penal liabilities of the plaintiff.”

It also prayed the court to declare that CBN acted ultra vires (outside) its statutory powers when it wrote the August 18 letter to it demanding a refund of $8.1 billion.

MTN urged the court to hold that the $8.1billion demand was “illegal, oppressive, abusive, unauthorised and unconstitutional.”

It also urged the court to void the September 3, 2018 letter written to it by the AGF demanding $8.1billion as “penalties for the offence of ‘infraction of forex remittances’.”

MTN prayed for an order “restraining the first and second defendants from giving effect to the decisions, demands and directives in their letters of August 28, 2018 and September 3, 2018, respectively.”

But, the CBN, in its statement of defence and counter-claim, urged the court to dismiss MTN’s suit for lacking in merit.

It insisted that the plaintiff must refund the $8.1billion to the Federal Government.

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