By Yankuba Jallow
The Civil Division of the Banjul High Court presided over by Justice Aminata Saho-Ceesay has refused Africell Gambia Limited’s application for the Court to grant them an order stopping PURA from executing their order against them.
When the case was called, the Applicants (Africell) were represented by Lawyer Richards Moses with F. Jagne whilst Lawyers Mrs. A Njie appeared with M.W. Jallow for the Respondent (PURA).
Africell on the 3rd day of May 2017, filed a motion on notice asking the Court to grant them the order which was a Legal Notice of PURA made on the 14th day of February 2017 against Africell Gambia Limited. The order made by PURA is the imposition of a fine of D5,000,000 (five million Dalasis) against Africell and a further fine of D500,000 (five hundred thousand dalasis) for failing to comply with the PURA order and a daily fine of D25,000 for as many days that the fine remains unpaid.
On the second notice, Africell were seeking for the Court to order for the stay of execution of all the said notices and orders, fines and orders which are not in accordance with applicable law, and the Constitution pending the hearing of this application or further orders of the Court.
Africell in support of their case, tendered 23-paragraph and 21-paragraph affidavit in support and reply respectively of one Alieu Badara Mbye, Chief Executive Officer of the Company on the 2nd and 16th March 2017 respectively. There was also in support of the application, an additional affidavit of one Mustapha Fofana sworn on the 6th day of March 2017 together with the documents exhibited thereto.
The Respondent (PURA) vehemently resisted the suit and in turn filed a 25 paragraph affidavit in opposition and 11-paragraph further affidavit in opposition deposed to by one Ansumana Sanneh, Director General of PURA on the 9th and 22nd March 2017 respectively.
Africell brought the civil suit application before the High Court claiming that PURA did not properly carry out its regulatory functions or act in accordance with the Constitution, the Information and Communication Act or The Gambia Public Regulatory Authority Act (PURA Act) Cap 32:05 or in any way that is discriminatory to Africell. Also Africell submitted that PURA was required to but failed to adopt the procedure set out in The Gambia Public Utility Regulatory Act Enforcement Regulations 2010 and in accordance with the applicable law, and in an even handed and non-discriminatory manner but the Respondent has failed or refused to do so and has acted in a partisan and discriminatory manner.
In addition, Africell submitted that there was no or proper complaint made in accordance with Regulation 4 of the Enforcement Regulations which allowed for the making of the order of the 14th February 2017 or the subsequent orders and that the Applicant (Africell) has been denied its Constitutional Right of fair hearing in accordance with applicable law.
Africell also claimed that PURA discriminated and refused to treat all operators fairly or equally and failed to permit the Applicant to see any complaint made in accordance with Regulation 4 of the Enforcement Regulations or any other law so as to allow them to respond specifically to the said complaint.
Africell further claimed “the Respondent (PURA) conducted enquiries by visiting offices of operators such as MGI Telecoms and The Gambia Telecommunications Company Limited in the absence of the Applicant (Africell) and then proceeded to use information derived from the said visits in the absence of the Applicant (Africell) in making its findings against the Applicant”.
Further, Africell appealed that they were not permitted an opportunity to meet the evidence or the complaint or all the evidence given against it or used by PURA in reaching its decision.
Finally, Africell claimed that the decision reached breached the fair hearing rights of the Applicant (Africell) and was made in excess of the authority of the Respondent and against applicable law.
By a letter dated the 13th day of February 2017, Africell wrote to PURA seeking answers regarding the treatment it was being accorded despite the existence of the aforementioned agreements. PURA on the 14th day of February 2017 captioned “legal notice pursuant to the Enforcement Regulations 2010” informed the Applicant that it had acted in contravention of its licence and imposed on same a fine of D5,000,000 (five million dalasis) which, according to PURA, was in accordance with Schedule 2 Section A10 of the Enforcement Regulations 2010. The said fine it is averred was as a result of Africell operating outside the scope of its licence by terminating international calls without an international gateway licence. In the same vein, PURA imposed an additional fine of D500,000 (five hundred thousand dalasis) which according to PURA was in accordance with Schedule 2 Section A12 of the Enforcement Regulations 2010 for failure to comply with the PURA’s directives to desist from terminating without licence. Africell on the 22nd day of February 2017 wrote to PURA that it is disputing the circumstances for the imposition of the fine and that the Respondent did not have the right to impose the said fines.
PURA held that Africell was issued a licence on 21st May 2013, to use the landing Station in Sukuta to access the allocated capacity on the ACE Submarine Cable System for the provision of International Information and Communication Data Services and in July 2009, Africell were issued a License to provide standard range of telecommunications services including voices, video, data and facsimile as well as internet services and value added services.
PURA held that it received a complaint from another telco, Comium (Gambia) Limited that Africell had unilaterally commissioned its own international gateway thereby violating the provisions of the Information and Communication Act 2009 causing loss of customers to Comium and as a consequence, loss of revenue. PURA also added that it also received a similar complaint from Gamtel containing allegations of market destabilisation and loss of revenue to the government of the Gambia.
The High Court relied its judgement on the documentary evidence before the Court. On the 7th February 2017, there was a letter from Gamtel alleging direct violation of the signed contract on the Gambia’s international gateway management by the routing by Africell of all international inbound and outbound (Gambia) calls through a bypass. The said information was to be provided to Gamtel by the Gateway Manager of MGI through email correspondence. Prior to this correspondence from Gamtel, there was one dated the 3rd February 2017 emanating from Comium alleging that it had come to its attention that since the previous week, Africell had unilaterally stopped using the gateway through Gamtel and had commissioned their own gateway.
The Court agreed with Counsel for PURA that under the law, PURA has several functions that are administrative, quasi-judicial and investigatory nature and that the decision of PURA was not given by virtue of its adjudicatory functions but by virtue of its investigatory functions. The Court inclined itself on the letter that PURA sent Africell that it has commenced investigation pursuant to section 134(1) of the Information and Communication Act.
The Court held that by virtue of Section 134(4) of the same Act, PURA is empowered to issue orders. The Court held that PURA had acted in accordance with Sections 134 (1) (a) and (b), 134 (1)(d), 134 (2), 134 (3) and 134 (4) adding in its holding that PURA did relay to Africell that it had commenced investigations against it to verify claims that Africell was terminating international voice calls and also PURA has requested Africell to explain.
The Court dismissed all Africell’s claims against PURA.