Regulatory Issues Under the Nigerian Telecommunications Laws: The Isiaka Bello v Helios Towers Case Study

ABSTRACT

In the Telecommunications Industry as well as in other industries, there are bound to arise various issues leading to disputes which thus explain the existence of different enacted regulations to help regulate the affairs of the sector. Using the case of Isiaka Bello v Helios Towers as case study, this article aims to give deep insights into the laws governing Telecommunications in Nigeria, the Regulatory Framework and Environmental Standards for the Installation of Telecommunications Masts and Towers, the concept of Nuisance as well as the damages awarded in Telecommunications Dispute Resolutions.

INTRODUCTION

In the case of Helios Towers Limited v. Mr Isiaka Bello, ¹ Helios Towers Limited installed a mobile phone transmission mast near the plaintiff’s residential building lying and being at No. 3, Adebayo Street behind Dental Centre, Ado-Ekiti, Ekiti State, which Mr Isiaka Bello claimed was interfering with his right to the use and enjoyment of his property as a result of the noise and micro-wave emissions from the transmission mast installed near his house and, afterwards, proceeded to commence an action at the Ado Ekiti Federal High Court by filing a Writ of Summons and Statement of Claim dated 23rd of January, 2012, while claiming against Defendant/Appellant, the following reliefs:-

(a) A declaration that installation of the transmission mast near the claimant’s residential building at No. 3 Adebayo Street, Behind Dental Centre, Ado-Ekiti by the defendants constitutes a trespass, nuisance and wrongful interference with the claimant’s interest in the use or enjoyment of his property.

(b) A sum of N100 million being general damages for the nuisance, wrongful interference with the claimant’s interest in the use or enjoyment of his property and imminent negative biological effects caused the plaintiff and members of his family as a result of the installation of mobile phone transmission mast by the defendants’ agents near plaintiff’s residential building situate, lying and being at No.3, Adebayo Street, Behind Dental Centre, Ado-Ekiti, Ekiti State.

(c) An order of perpetual injunction restraining the defendants, their agents, servants and privies from operating the mobile phone transmission mast installed near the plaintiff’s residential building situate, lying and being at No. 3, Adebayo Street Behind Dental Centre, Ado-Ekiti, Ekiti State and from further interfering with the plaintiff’s use and enjoyment of his residential building situate, lying and being at No. 3 Adebayo Street, Behind Dental Centre, Ado-Ekiti, Ekiti State”.

The trial court, after the whole legal process, rendered Judgment in favour of the claimant/1st Respondent. The appellant (Helios Towers Limited), dissatisfied with the judgement of the trial court, went ahead to file a Notice of Appeal raising the following issues for determination:-

1. Whether the learned trial Judge was right to have held that the Claimant/Respondent adduced enough material evidence to prove that the tort of nuisance had been committed against him by the Appellant.
2. Whether the learned trial Judge was right to have awarded the sum of N2,000,000.00 (Two Million Naira only) as general damages in favour of the Claimant/Respondent, considering the circumstances of the case and evidence before the court.
   3. Whether the learned trial Judge was right to have upheld the application of NESREA Regulations 2011 over and above NCA 2003, considering the circumstances and the subject matter of the case.

In Telecommunications-related issues, there exist various regulations enacted to address the issues raised in the case of Isiaka Bello v Helios Towers (supra) some of which include, but not limited to: the Nigerian Communications Act, 2003, the Technical Specifications for the installation of Telecommunication Masts and Towers 2009, the National Environmental (Noise Standard and Control) Regulation 2009 and the Nigerian Criminal Code. Needless to say, Laws (that is Acts, Regulations, and Guidelines) remain one of the most fundamental backing and comprehensive instruments upon which the Telecommunications Industry thrives. Hence, this article aims to bring to limelight some of the regulatory issues in the Nigerian Telecommunications Industry especially those laws relating to the issues raised in the case of Isiaka Bello v Helios Towers and, most importantly, show that in Nuisance, it is not enough for an individual to claim that the act of someone was interfering with his right to the use and enjoyment of land without any substantial evidence of actual damage suffered to substantiate his claims.

• TELECOMMUNICATIONS IN NIGERIA

The case of Isiaka Bello v Helios Towers, brought to limelight the various regulatory issues in the Telecommunications industry and, as such, Telecommunications in Nigeria will be explained in line with the Isiaka Bello’s case as well as the regulatory issues relating to the case.

Telecommunications or telecoms, refers to the process of exchanging information such as voice, data, and video transmissions over long distances for the purpose of sharing information.² Telecommunications in Nigeria include radio, television, fixed and mobile telephones and the Internet. Telecommunication networks not only promote global information exchange but also put citizens in touch with each other, their media and their government institutions. Evidently, development in Satellite, Optical fibre, mobile technology, the Internet and the World Wide Web (WWW) has greatly improved global communications and facilitated the exchange of information between different peoples of the world.

• LAWS GOVERNING TELECOMMUNICATIONS IN NIGERIA

The Nigerian Communications Act, 2003 (hereinafter referred to as NCA 2003) provides for the laws and rules that regulate telecommunications in Nigeria. The Act under Section 70 ³ also establishes some subsidiary legislations such as the Guidelines on the Installation of Telecommunications Masts and Towers 2009, Licensing Regulations 2019, Frequency Spectrum Regulations 2004 and Guidelines on Type Approval, among others. It should be noted that the legal and regulatory framework of the NCA, 2003 covers the technical standards for telecommunications licensing, market competition, tariff regulations, resolution of disputes, consumer protection, quality of service, spectrum assignment, numbering services and installation of network facilities and so on.

The National Environment Standards and Regulations Enforcement Agency (Establishment) Act 2007 (hereinafter referred to as the NESREA Act, 2007) ⁴ is also enacted by the National Environment Standards and Regulations Enforcement Agency, a federal agency charged with the responsibility of regulating and enforcing environmental standards, regulations, laws, policies, and guidelines in Nigeria. Worthy of note is that NESREA does not have regulatory functions over NCC in telecommunications operations in Nigeria, as telecommunications matters remain the exclusive prerogative of the NCC by virtue of Section 3(1) of the NCA, 2003 and Section 20 of the Constitution of the Federal Republic of Nigeria, 1999 as amended pursuant to Item 46 Second Schedule (Exclusive Legislative List) dealing with post, telegram and telephones.Both the NCA, 2003 and the National Environmental (Standards for Telecommunications and Broadcast Facilities) Regulations 2011 (2011 Regulations) establish the environmental standards to regulate the installation of BTS Masts.

With the erratic situation of electricity supply in Nigeria, the telecommunication companies make provisions for the use of generators to ensure that there is no break in transmission in their services and maintain the QoS.

• PERMISSIBLE NOISE LEVEL

The NESREA Act and Regulations take due cognizance of the permissible noise level of generators depending on the location of the Base Stations. The 2011 Regulations provides that for residential areas, the permissible noise level shall not exceed 50 decibels during the day (6am–10pm) and 35 decibels at night (10pm-6am). It is however plausible to assume that where the residential building is located within Industrial/ Commercial area, the permissible noise level will definitely be higher. Also, for places such as hospitals, institute of higher learning, public libraries and convalescence owned in the general environment, the permissible level is 45 decibels during the day and 35 decibels at night

These requirements are similar to those contained under the National Environmental (Noise Standards and Control) Regulation 2009.⁵ The permissible noise level for residential building is 50 decibels during the day and 35 decibels at night. For mixed residential with some commercial and entertainment areas, it is 55 decibels during the day and 45 decibels during the night. For industrial areas (outside perimeter fence), it is 70 decibels during the day and 60 decibels at night, and for building used as hospitals, home for aged, sanatorium and institute of higher learning, conference room, public library and environment/recreation sites, the permissible noise level is 45 decibels during the day and 35 decibels at night.

In the same token, the Guidelines on the Installation of Telecommunications Mats and Tower 2009 (2009 Guidelines) ⁶ states that all generators within a BTS must be sited 5meters away from the demised premises, excluding the fence and such generators must be sound-proof and be installed on good shock absorbers, so as to minimize vibration to the barest minimum. Lastly, all generators must be installed in such a way that the exhaust pipe is not directed towards any demised properties so as to mitigate the effect of heat, smoke and noise pollution if sited within residential areas.

• DISPUTE AS REGARDS NOISE LEVEL

Any person may complain to the Agency in writing if such a person considers that the noise levels being emitted, or likely to be emitted, is higher than the permissible noise level under these Regulations. In any such complaint, it is not necessary for the complainant to show or prove personal loss or injury or discomfort caused by the emission of the alleged noise. On receiving such complaint, the Agency shall carry out due investigation and take all reasonable steps to ensure that the noise is abated or controlled within permissible levels under these Regulations.

The solution to the complaint filed is to either repair service or replace the generator. If that is still not done, NESREA may now proceed to shut down the Base Station. Contravention of noise regulations is punishable by a fine of #50,000 or imprisonment up to a year or both with additional fine of #5, 000 for every day the offense persists. Substantial   evidence   rule, on the other hand, is a principle of law that holds that a reviewing court should uphold an administrative body’s ruling if it is supported by evidence on which the administrative body could reasonably base its decisions on. Substantial, within the meaning of the substantial evidence rule, means that the evidence must be of ponderable legal significance. It does not mean simply any evidence. It must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case.

• NUISANCE

Nuisance can be defined as any conduct that interferes and obstructs with the convenience and comfort of another person in the exercise of the use and enjoyment of land or a right attached to it.⁷ Nuisance thus occurs when a landowner engages in an activity that significantly interferes with the use or enjoyment of another’s property, or that affects the health, safety, welfare or comfort of the public at large. The tort of Nuisance majorly is of two types namely:

Private Nuisance: a private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without an actual Trespass or physical invasion to the land.

Public Nuisance:  is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community.

 In situations where an individual complains about an interference in his right to use and enjoy his property, the party bringing the suit (the “plaintiff”) must prove that another party (the “defendant”) engages in an activity that significantly interferes with public or private property rights and that such interference is substantial. This is provided for in Section 131 of the Evidence Act, 2011 ⁸ which provide that:

‘Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist’. ³ This was the decision in the case of CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS V BASSEY EBONG EKO (2008) 6 NWLR (PT.1083) 262.

• ISSUE OF NUISANCE IN THE CASE OF HELIOS TOWER LIMITED V. MR ISIAKA BELLO & ANOR

In determining whether there is the issue of Nuisance in a particular case, there must be the existence of a conduct that interferes and obstructs with the convenience and comfort of another person in the exercise of the use and enjoyment of his land or a right attached to it. According to the written statement of oath of the Claimant: ‘I built my residential building in year 2000 and have been living therein with members of my family since then. My wife and children spend more time at home than office and schools respectively. The transmission mast is interfering with the use and enjoyment of my residential building. I know as a fact that the biological effects caused by exposure to radio/microwave usually emitted by mobile phones transmitting mast is hazardous to human’s health’. ⁹

From the above statement, it can be inferred that there is the existence of Nuisance. That established, it is however settled in law that  nuisance, whether public or private, is an injury which confers on the person affected a right to action and such person must prove that the other party (the “defendant”) engages in an activity that significantly interferes with his public or private property rights and that such interference is substantial.

With the burden of proof lying on the Claimant, Mr Bello failed to discharge the burden of proof as he never led any evidence to show that the damage or injury he suffered was due to the micro-wave from the transmission mast installed near his house. He only relied on the information uttered to him by his doctor and failed to go further to provide a Medical Report or call the medical doctor as a witness to testify as to the health hazards associated with the mast installation close to his residential building.

In the case of RAPHAEL EJESIE & ORS V CHRISTOPHER ANUWU & ORS (2008) ¹⁰ it was confirmed that that position of the law is that it is the duty of the Court to consider the evidence produced before it and never to proceed to indulge in speculation as to what might have happened as the law of private nuisance does not provide for anticipated damage rather actual material damage or interference.

Where an action is founded on interference with enjoyment of land, such as where a plaintiff complains of inconvenience, annoyance or discomfort caused by the defendant’s conduct, the interference must be shown to be substantial. It is thus safe to state that the Claimant failed to establish such and as a result of this ‘missing link’, he is not entitled to any damages as the whole basis of law of Nuisance is the ability of the Claimant to prove his alleged claims beyond reasonable doubt.

Part of the issues raised by Mr Bello is the issue of noise disturbance emanating from the transmission mast.  The National Environmental (Noise Standard and Control) Regulation 2009 provides that the noise level permitted at Residential Areas shall not exceed 50 decibels during the day and 35 decibels at night with Night being between 10pm and 6 am while day is between 6 am between 10 pm. But Mr Bello also failed to prove that the noise level emanating from the masts exceeded the stipulated decibels provided by the 2009 regulations.

The Section 3(5) of the Guidelines on Technical Specifications for the installation of Telecommunication Masts and Towers 2009 ¹¹ issued by Nigerian Communications Commission (NCC) ¹² on 9th April, 2009, provides for the permissible setback as 5 meters. There is, however, no evidence on record from the Claimant to establish the distance between the base station and his property, to prove whether or not the Defendant was in compliance with the NESREA Regulations or the NCC Guidelines on Technical Specifications for the Installation of Telecommunication mast. Regardless, the failure on the part of Helios Towers Limited to comply with the stipulated setback constitutes a public nuisance and such, should be taken to court by NESREA with Mr Bello Isiaka lodging a complaint to NESREA.

On a final note, the fact that evidence adduced showed that the transmission mast was installed close to 1st Respondent’s residence, the Claimant in first instance is not sufficient to hold that nuisance has been established. There must be evidence of actual damage suffered by the Claimant which, in this case, he has failed to prove. Judges cannot assist a plaintiff to win his case, because cases are not decided on emotions, sentiments or some misguided considerations. Cases are won on pleaded facts supported by compelling evidences and as such, the Court of Appeal was right in giving judgment in favour of the Appellant, Helios Towers Limited, as Mr Isiaka Bello has failed to prove that the installation of the transmission masts actually interfered with his rights to use and enjoy his property. 

Co-Authored by the ‘BATCH C-2020’ INTERNS: Eniola Petra Oluyemo (300L, UI), Kawthar Omisore (400L, UI), Chukwuyem Omehoduonye Alvin (500L, OOU) and Adebusola Nafisat Ogunsesan (300L, UI).

• REFERENCES

1. https://Lawcarenigeria.com/helios-tower-limited-v-mr-Isiaka-bello-anor-2015/
2. cadsourcing.com/what-is-telecommunication/
3. Section 70, Nigerian Communications Act, 2004.
4. The National Environment Standards and Regulations Enforcement Agency (Establishment) Act 2007
5. National Environmental (Noise Standards and Control) Regulation 2009
6. Guidelines on the Installation of Telecommunications Mats and Tower 2009 (2009 Guidelines)
7. https://legal-dictionary.thefreedictionary.com/nuisance
8. Evidence Act, 2011.
9. https://Lawcarenigeria.com/helios-tower-limited-v-mr-Isiaka-bello-anor-2015/
10. https://Lawcarenigeria.com/raphael-ejezie-anor-v-christopher-anuwu-ors/
11. Technical Specifications for the installation of Telecommunication Masts and Towers 2009