The Court of Appeal in Abuja has ordered a leading telecommunications firm, MTN Nigeria to pay N15million in damages over the unlawful deduction of a subscriber’s airtime over services an aggrieved customer – Ezugwu Anene – claimed not to have subscribed for.
A three-member panel of the court awarded the damages in favour of Anene in a unanimous decision, which was read on Friday by Justice Okon Abang, who wrote the lead judgment.
The court described as fraudulent, the regular deduction of airtime of customers by MTN for the auto-renewal of services not subscribed to.
It also held that the decision by MTN to send unsolicited text messages to subscribers amounted to a breach of their )subscribers’) right to privacy under Section 37 of the 1999 Constitution, as amended, as well as the violation of Regulation 28 of the Consumer Code of Practice Regulations.
The Appeal Court noted that the unsolicited text messages caused the appellant anxiety, adding that MTN was likely profiting substantially from the practice, and Nigerians “may not know this.”
The appellate court said: “If MTN had sent unsolicited messages to 10 million phones at the time, owned by innocent Nigerians, it would unlawfully enrich itself to over a trillion naira.
It upheld the finding of the HIgh Court that Anene had complained to MTN and made a personal complaint to its customer care team.
It also upheld another finding of the trial court that the claimant had activated the DND option, but despite the efforts, MTN persisted in sending unsolicited messages.
The appellate court proceeded to set aside the N300,000 general damages earlier awarded by the trial court against MTN and in favour of Anene.
The judgment was on an appeal, marked: CA/ABJ/CV/137/2022, filed Anene against the judgment of the High Court of the Federal Capital Territory (FCT), delivered on September 22, 2021 by Justice U.P. Kekemeke.
The appellate court dismissed the cross-appeal by MTN. The telecommunication firm had challenged the N300,000 awarded by the trial court, arguing that the total deductions it made from Anene’s line amounted to about N14,000 and that the N300,000 award ed against it was excessive.
Anene, in his suit at the High Court, claimed that he received over 244 unsolicited text messages from MTN for ‘weekly guidance and counselling,’ a service he did not subscribe to.
He added that from 2016 to 2018, N20 was unlawfully deducted from his airtime balance, each time he received the text message on his mobile telephone line he gave as 08030735301.
Anene stated that MTN continued to deduct his airtime for ‘caller tune services’ that were imposed on him.
He further stated the unwanted deductions persisted, even though he protested at the Abuja office of the telecommunication company and also used a code, 2442, which he was told would activate a ‘Do Not Disturb’ service on his line.
In his September 22, 2021 judgment, Justice Kekemeke held among others that that Section 37 of the 1999 Constitution, as amended, guarantees and protects citizens’ privacy, including their homes, correspondence, telephone conversations, and telegraphic communications.
He 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 “potent” evidence.
The judge proceeded to declare 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.
He issued and order perpetually restraining MTN from further sending unsolicited text messages or imposing callertunes and deductions on Anene’s airtime.
The judge proceeded to award N300,000 as general damages against MTN and in favour of Anene, a decision he subsequently appealed.
