The Abuja Division of the Court of Appeal on Friday fined MTN Nigeria Communications Limited N15 million for inundating a subscriber with multiple unsolicited text messages and illegally charging him for callertune, a service that he didn’t request.
A panel of three justices, in a unanimous ruling delivered by Justice Okon Abang, adjudged MTN’s actions a violation of right to privacy and quiet enjoyment of airtime that had been purchased by appellant Barrister Ezugwu Emmanuel Anene, a public interest lawyer.
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Background of the case
The case was predicated on a ruling by the FCT High Court in September 2021 delivered by Justice U.P. Kekemeke.
Anene, the plaintiff, sought an order declaring MTN’s actions a breach of his privacy, with claims that the telecommunications giant called him at least 88 times at odd hours, causing him shame, discomfort, distraction, and concern.
Anene requested more than N200 million in general damages for the “imposition of caller tunes on the claimant’s mobile number” and the “disturbing unsolicited messages sent to the claimant weekly.”
He argued before the Court that he did not subscribe for MTN caller tune, counselling, or clarion child guidance services, yet, he was charged for them.
According to the lawyer, “MTN inundated him with a large volume of messages and deducted money from his airtime for unsolicited services from July 2016 to March 21, 2018, at inappropriate hours.”
He further contended that the calls were persistent leading him not to answer some of his calls, a move that made him miss out on important business calls.
MTN, through its staff Emmanuel Iteade, told the Court that the prepaid terms and conditions are prominently displayed in the SIM starter kit for prospective subscribers to carefully consider.
According to the official, MTN did not make any unlawful or fraudulent deductions from the claimant’s airtime, nor did it violate his right to privacy or the quiet use of 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.
High Court previously fined MTN N300,000
The High Court ruled that residents’ privacy, including their houses, mail, phone conversations, and telegraphic communications, is guaranteed and protected under Section 37 of the 1999 Constitution as amended.
During cross-examination, MTN’s witness acknowledged that the company’s terms and conditions in the starter kit were “so tiny, he cannot read it,” which the judge deemed to be “potent” evidence.
The High Court then ruled that the claimant’s right to privacy and quiet use of his phone and airtime had been violated by the multiple unwanted text messages and caller tunes that were delivered to his phone without his consent, as well as the consequent deductions from his airtime.
The court permanently barred MTN from imposing calling fees and deductions on the claimant, as well as from sending unsolicited text messages.
Despite noting that the claimant was unable to adequately substantiate the claims regarding the 88 calls, the court granted N300,000 in general damages.
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Appeal Court fines MTN N15 million
Dissatisfied with the N300,000 compensation, Anene sought redress at the appellate court.
In their cross-appeal, MTN’s legal team also claimed that the N300,000 award was fair given that only N14,000 was deducted from the claimant.
The Court of Appeal acknowledged that the appellant was anxious due to the unwanted text messages, but it also noted that Nigerians “may not know this” and that MTN was probably making a lot of illegal money from this practice.
The court believed that as a “deterrent,” the trial court ought to have imposed exemplary damages on the foreign corporation MTN, pointing out that the money received from these charges was not MTN’s legitimate revenue.
The judgement declared that MTN would have illegally enriched itself to over a trillion naira if it had sent unsolicited messages to 10 million phones that were owned by innocent Nigerians at the time.
In the unanimous ruling of the three-member Appeal Court panel, the judge revoked the N300,000 in general damages that the high court had imposed.
The Appeal Court concurred with the High Court that the claimant had personally complained to MTN’s customer service representatives.
Additionally, it acknowledged that the claimant had turned on the Do Not Disturb (DND) feature, yet MTN continued to send unwanted messages despite these actions.
“In all, I award N15 million in damages in favour of the appellant and against MTN. The appeal succeeds and is allowed,” Justice Abang said on Friday.
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