Commercial Court Division
It was suggested that the court invoke its powers under Order 15 rule 5 of the Civil
Procedure Rules (CPR) to frame an appropriate issue that would determine the real
matters in controversy in this suit. This is a correct case for the court to do so. Each
party framed an issue that was geared to afford them a favourable result.
What then is the real issue in controversy for determination in this case? To my mind
the real issue for determination is which rate should be applied to MTN calls made to
subscribers of Gemtel i.e. local or International rates and that is what I shall
determine while taking into account what the parties also had framed.
The relationship between MTN and UTL
In order to determine whether the calls in this suit are local or International one has
to define the legal relationship between MTN and UTL.
It is the requirement of the Telecommunications (Interconnection) Regulations
(supra) that each provider enter into reciprocal compensation arrangements. This
arrangement is popularly referred to as an Interconnection Agreement. In this suit,
UTL and MTN entered into an Interconnection Agreement for reciprocal compensation
effective 1st February, 2001. Both parties admit this agreement and so it is not in
dispute. The Interconnection Agreement does not define what an International or
local call is. However, what an International or local rate is provided for under Article
6 of the said agreement. The rates are contained in the Rates Appendix/Tariff Table
appended to the said agreement.
That notwithstanding Article 28 of the
Interconnection Agreement provides
“… This Agreement represents the entire understanding between the
parties in relation to Interconnection and supersedes all previous
understandings, agreement or commitments whatsoever, whether oral
or written. All references to … annexes shall be deemed references to
such part of this Agreement, unless the context shall otherwise require
…”
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