NCA thrown out as court upholds SUBAH injunction on Kelni/GVG contract

The National Communications Authority (NCA) has been restrained from executing an $89m revenue monitoring contract with Kelni/GVG after an Appeal Court upheld an injunction order.

The injunction order was secured by Subah Infosolution on 14th February 2018 after government canceled its contract and awarded it to Kelni/GVG.

Subah is in court seeking a cancellation of the Kelni/GVG contract arguing the termination of its services in December 2017 was unlawful and void.

While the case is in court, Subah wants government through its agencies the NCA be restrained from giving out the contract to any third party to begin work.

But before the injunction could take effect, the NCA proceeded to the Court of Appeal hoping to quash the High Court order.

In their statement of defence, counsel for the NCA Kwaku Gyau-Baffour denied that a third party was being contracted to do the work earlier given to Subah.

There is no need for an interlocutory injunction when there is no process to injunct, the applicants, NCA explained.

But in court, the applicants were heard arguing to the contrary.

The Appeal court presided over by Justice K.A Acquaye with Justice I.O Tanko Amadu and Barbara F. Ackah-Yensu as members of the panel agreed, the NCA failed to show why the injunction granted Subah should be overturned.

The NCA, Ghana Revenue Authority and Mobile Network Operators (MNO) could be held in contempt if it is shown that they are proceeding to implement the contract.

The Vodafone CEO Yolanda Cuba has said the telcos have complied with the government directive that they allow Kelni/GVG to connect into their nodes to monitor call traffic which would then be used to determine if these companies pay the right taxes.

But she compared the connections to a pipeline with no water running through, suggesting although they have connected into Kelni GVG, there has been no actual revenue assurance because of the pending court case.

The controversial deal is government's attempt to implement the Electronic Communications Act which requires the government to independently monitor call traffic to determine its tax revenues.

Government has been depending on data supplied by telcos to calculate its taxes. But believing it could get more, the government now wants to check call traffic which forms the basis for calculating how much taxes telcos should pay.

SUBAH, the first company tasked to do this in April 2015 had to rely on Excel spreadsheets detailing call traffic submitted to the government regulator, National Communications Authority by the telcos

Nonetheless, the government paid Subah millions of Ghana cedis for monitoring telecom revenue on both the local and international fronts, even though the NCA has said Subah does not do real-time monitoring as mandated to.

There has been a lot of politics since the legal regime to monitor telcom revenues was put in place. SUBAH Infosolutions was backed by the Ghana Revenue Authority despite resistance from the National Communications Authority.

The GRA returned the favour by also resisting the NCA preference of Afriwave, the second company chosen to do a similar job.

The New Patriotic Party government has introduced a third player in Kelni GVG and thrown out the two other competitors. SUBAH Infosolutions has however gone to court to challenge the cancellation of their contract.

 

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