How NCC Commissioner Gwandu Won Dismissal Case Against President Jonathan-Leadership Newspaper

Bashir Gwandu

The National Industrial Court, NIC, in Abuja has at last delivered its ruling in the suit filed by the former executive commissioner of the Nigerian Communications Commission (NCC), Dr Bashir Gwandu, against President Goodluck Jonathan and others challenging the legality of his removal from office.

Gwandu was asking:
1.       Whether by virtue of the provisions of S. 10 (2), (3) and (4) of the Nigerian Communications Act, 2003, his purported removal as an executive commissioner of the Nigerian Communications Commission by the 1st defendant (President) via a letter dated November 26, 2012 is not illegal, unconstitutional, ultra vires, null, and void and of no effect whatsoever.

2.       Whether having regard to the provisions of S. 10 (2), (3) and (4) of the Nigerian Communications Act, 2003, his fundamental right to fair hearing was not breached having not been served with the statutory notice of the intention of the 1st defendant to remove him from office and the reasons thereof and afforded the statutory opportunity to make written submissions thereto prior his removal from office.

3.       Whether having regard to the provisions of Sections 8 and 10 of the Nigerian Communications Act, 2003, the appointment of the claimant by the 1st defendant does not have legal status as to invest the Court with the power to order the reinstatement of the claimant and payment of his salaries and allowances since November, 2012.

4.       Whether if questions 1, 2, & 3 above are answered in the affirmative, the claimant is not entitled to exemplary and aggravated damages.

Gwandu is also seeking the following prayers

1.       A declaration that the purported removal of the claimant as an Executive Commissioner of the Nigerian Communications Commission by the 1st defendant via a letter dated November 26, 2012 is illegal, unconstitutional, ultra vires, null and void and of no effect whatsoever as it violates the provisions of Section 10 (2), (3) and (4) of the Nigerian Communications Act, 2003.

2.       A declaration that the failure or refusal of the 1st defendant to serve the claimant with the statutory notice of intention to remove him from office and the reasons thereof and afford him the opportunity to make written submissions thereto prior to his removal from office is illegal, null and void as it violates the claimant’s right of hearing guaranteed by Section 10 (2), (3) and (4) of the Nigerian Communications Act, 2003.

3.       A mandatory order of this honourable court directing the 1st defendant herein to reinstate the claimant as an Executive Commissioner of the Nigerian Communications Commission and pay him his accrued salaries, benefits and allowances since November 26, 2012 till judgment is delivered in this suit.

4.     An order of this Honourable Court directing the 1st defendant to pay the sum of N500, 000, 000.00k (Five Hundred Million naira only) to the claimant as exemplary and aggravated damages as a result of his unlawful removal as Executive Director of the National Communications Commission, and by extension, as Chair of the International Telecommunications Union Radio Communications Advisory Group as well as Vice-Chair of the ITU Joint Task Force Group 4567.
The Court dismisses preliminary objection of the President for lack of merit and also granted reliefs 1, 2, and a part of relief no. 3 and 4; The court declares Gwandu’s removal  from office as executive commissioner as illegal, unconstitutional, ultra vires, null and void and of no effect whatsoever.

The court also ordered that Gwandu’s accrued salaries, benefits, allowances and entitlements up to 21st January 2014 be paid.

The court, however, declined to order re-instatement citing ‘acrimony’ within the NCC as the reason. The Court has granted N100m of the N500m claim as General damages apparently to compensate for the loss of the two major international ITU appointments which are lost, to serve as a exemplary, and for damage to reputation in the manner removed.

Gwandu’s counsel, however, seemed perplexed that the court failed to reinstate him, saying that it was not the role of the court to look at acrimony even if it existed.

Since the court has declared the action as illegal, then the court is duty-bound to order re-instatement. He said his client (Gwandu) could lose almost 2 years pay, allowances, and other entitlements if his tenure and contract is cut short before Jan 2016. He said he will consult with his client to decide whether or not to appeal against the part of the ruling.

Engr. Gwandu in his reaction said “First, we thank God for this day, and I thank my Lawyers, Mr Femi Falana SAN and Mr Deji Morakinyo for a job well done. I also thank the Industrial Court and our judge for the courage to declare the action of my removal illegal, null, and void and of no effect whatsoever.”

He further said that “I see this case as part of my contribution towards strengthening of the rule of law and a decision meant to send message to investors that Nigeria has come of age and is a place where the law is applicable to everyone, including the President. The Nigerian telecom law is there and it contains adequate provisions to protect stakeholders and investment, all that investors need to do is to learn to stand and pursue their rights in defence of their investments.

” As for the young ones, never be discouraged, troubled, or get intimidated by powerful forces. There is an honour in public service, just do your part, and God is there to provide protection. Have faith in God and you will never be disappointed.”

It would be recalled that Jonathan removed Gwandu hurriedly after he exposed a series of fraudulent, secret, and non-competitive Sales of Frequency Spectrum, and Spectrum fee Waivers that could cost government over N53billion at a meeting chaired by the Vice-President on 6th August 2012 which naturally will lead to acrimony.

In particular Gwandu was removed from office as a Executive Commissioner of the Nigerian Communications Commission (NCC) on November 26, 2012, for three major frauds he exposed; first, selling of 450MHz Spectrum to an unlicensed company- OpenSkys ltd reportedly owned by Mr. Emeka Offor. OpenSkys paid only US $6 million for a license that should have fetched the nation over $50 million.

The arrangement has further incapacitated the new $470m police network, which has started falling apart. The police appear to be helpless. Secondly, the N1.029bn waiver applied for by the Communications Minister Mrs. Omobola Johnson supposedly for three companies, and then granted only to MTS- a company that the NCC Chief Executive Officer, Dr Eugene Juwah in two separate Interviews granted on 16th June 2007 and 12th October 2012 admitted share ownership, at the expenses of the federal treasury and other telcos operating under similar conditions in the industry, noting that a similar type of waiver amounting to N242million granted by NCC to Mobitel was eventually agreed to be shared between sellers and new buyers, and then, the third issue he stood against, was the selling of a 10MHz slot in the 800MHz spectrum-band to a South African company called Smile Communications Limited at about euros €13 million only when exact equivalent spectrums were sold in Germany, Italy, France and UK for €1.153billion, €992million, €891million and €631million respectively, the UK earning slightly lower amount due to imposed strict coverage obligations. In a related development, a few days ago, Belgium, a country of just 11 Million people, raised €120m for each of the 3 slots of the 800MHz Spectrum generating a revenue of €360m, and in a rather complicated mixture of 4G Spectrum slots Netherlands was, only recently, able to raise Euros €3.8billion from the 4G auction.

Dr Bashir Gwandu stood against the NCCs secret non-competitive sale of the 800MHz and the 450MHz Spectrums because the sale breaches clear provisions of the Nigerian Communications Act 2003, Nigerian Procurement Act 2007, and the NCC Spectrum Pricing Regulation. In particular, the sale has breached Nigerian Communications Act 2003 Sections 1(e), 4(1)(d), 4(2), 33(3) as well as Public Procurement Act 2007 Sections 55(3), 56(3), 57(5,6) and also Spectrum Pricing regulations s. 2(a) and s. 2(c) and s. 4 of the Regulation.