The Court of Appeal in Abuja on Friday awarded N15 million in general damages against MTN Nigeria Communications Limited for violating a customer’s privacy through unsolicited messages and callertunes.
The three-member panel ruled unanimously that MTN’s actions infringed on the right to privacy and disrupted the quiet enjoyment of airtime purchased by Ezugwu Anene, a public interest lawyer.
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In the lead judgement delivered by Okon Abang, thr court described the unsolicited services as a breach of Mr Anene’s rights because telecommunications providers must respect their customers’ choices and refrain from imposing unwanted services.
Mr Abang said that the sending of unwarranted text messages by the company amounted to a breach of subscribers’ right to privacy under section 37 of the Nigerian constitution as well as a violation of Regulation 28 of the Consumer Code of Practice Regulations.
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The judgement followed an appeal marked CA/ABJ/CV/137/2022, which was brought before the court to set aside the N300,000 general damages imposed by the FCT High Court in Abuja.
Mr Abang agreed with the High Court that the claimant had complained to MTN and made a personal complaint to its customer care team.
The court held that the claimant had activated the Do Not Disturb (DND) option, but despite these efforts, MTN persisted in sending the unsolicited messages.
“In all, I award N15 million in damages in favour of the appellant and against MTN. The appeal succeeds and is allowed,” the judge added.
Regarding MTN’s cross-appeal, the Appeal Court dismissed it, stating it lacked merit.
The case
The matter arose from the judgement of the FCT High Court in Abuja delivered on 22 September 2021.
In the judgement, the trial judge, Peter Kekemeke, upheld the case of Mr Anene, who sought a declaration that 88 unsolicited calls made by MTN to him at odd hours caused embarrassment, inconvenience, distraction, and anxiety, thereby breaching his right to privacy.
Therefore, Mr Anene through his legal team, also sought over N200 million in general damages for the “disturbing unsolicited messages sent to the claimant weekly,” as well as for the “imposition of callertunes on the claimant’s mobile number.”
He argued before the Court that although he subscribed to MTN’s network services, he never signed up for the weekly clarion child guidance, counselling, or caller tune services provided by MTN.
He said instead, “the MTN inundated him with a large volume of messages and deducted money from his airtime for unsolicited services from July 2016 to 21 March 2018, at inappropriate hours.”
He added that his refusal to answer calls from certain numbers denied him the opportunity to receive important business calls, while the strange calls were continuously recurring and embarrassing.
On its part, MTN, represented by its staff member Emmanuel Iteade, informed the High Court that when a prospective subscriber purchases a SIM starter kit, the prepaid terms and conditions are clearly placed in the kit to allow careful review.
The official stated that MTN did not breach the claimant’s right to privacy or the quiet enjoyment of his airtime and did not make any fraudulent or illegal deductions from his airtime.
“All services complained about by the claimant were subscribed to by him, and the defendant merely debited him for the services,” the respondent said.
In passing judgment, the High Court held that Section 37 of the 1999 Constitution, as amended, guarantees and protects citizens’ privacy, including their homes, correspondence, telephone conversations, and telegraphic communications.
The judge also noted that MTN’s witness, when cross-examined, admitted that the reference in the company’s terms and conditions was “so tiny, he cannot read it,” which the judge considered to be a “potent” evidence.
The High Court then declared that the numerous unsolicited text messages and callertunes sent to the claimant’s phone, without his subscription to them, as well as the subsequent deductions from his airtime, constituted a breach of his right to privacy and quiet enjoyment of his airtime and phone.
The court perpetually restrained MTN from sending unsolicited text messages or imposing callertunes and deductions on the claimant’s airtime.
The court awarded N300,000 as general damages but noted that the claimant could not sufficiently prove the assertions about the 88 calls.
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Mr Anene, who was dissatisfied with the N300,000 awarded to him by the lower court, proceeded to the Appeal Court for further redress, arguing that the amount was too low.
MTN’s legal team also cross-appealed, stating that the total deductions from the claimant amounted to about N14,000 that the N300,000 awarded by the trial court was generous.
Judgement
The Appeal Court agreed that the unsolicited text messages caused the appellant anxiety, adding that MTN was likely profiting substantially from this practice, and Nigerians “may not know this.”
The court opined that the trial court should have awarded exemplary damages against MTN, a foreign company, as a “deterrent”, noting that the money generated from such charges was not legitimate income for MTN.
“If MTN had sent unsolicited messages to 10 million phones at the time, owned by innocent Nigerians, it would have unlawfully enriched itself,” the judge said.
