The Court of Appeal in Abuja has awarded N15 million in general damages against MTN Nigeria Communications Limited for disturbing a Nigerian customer’s phone with unsolicited messages and caller tunes, despite the customer never subscribing to these services.
According to Nairametrics, the appellate court passed the judgment on Friday, ruling that MTN’s actions violated the right to privacy and the quiet enjoyment of airtime purchased by Barrister Ezugwu Emmanuel Anene, a public interest lawyer.
Justice Okon Abang delivered the judgment on Friday.
The case arose from a decision by the High Court of the Federal Capital Territory (FCT), delivered by Justice U.P. Kekemeke on September 22, 2021.
Anene, the claimant, sought a declaration that 88 unsolicited calls made by MTN at odd hours caused him embarrassment, inconvenience, distraction, and anxiety, thus breaching his right to privacy.
He also sought over N200 million in general damages for the unsolicited messages sent to him weekly, as well as the imposition of caller tunes on his mobile number.
Anene argued before the High Court that although he subscribed to MTN’s network services, he never signed up for the weekly clarion child guidance, counseling, or caller tune services provided by MTN.
Instead, he claimed that from July 2016 to March 21, 2018, MTN inundated him with numerous unsolicited messages and deducted money from his airtime for services he had not subscribed to.
He also stated that these messages came at inappropriate hours, and his refusal to answer certain calls prevented him from receiving important business calls.
The recurring and embarrassing calls caused him distress.
MTN, represented by its staff member Emmanuel Iteade, argued in the High Court that when a customer purchases a SIM starter kit, the prepaid terms and conditions are clearly provided for review. MTN maintained that it had not breached Anene’s right to privacy or quiet enjoyment of his airtime, and denied making fraudulent or illegal deductions.
The company asserted that all services complained of were subscribed to by Anene, and the deductions were for services he had agreed to.
The High Court ruled that Section 37 of the 1999 Constitution, as amended, guarantees citizens’ privacy, including the protection of their homes, correspondence, telephone conversations, and telegraphic communications.
The judge also noted that MTN’s witness had admitted, during cross-examination, that the reference to the company’s terms and conditions was printed in such a small font that it was unreadable, which the judge considered potent evidence.
The court declared that the unsolicited text messages and caller tunes sent to Anene’s phone, without his subscription, 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 also perpetually restrained MTN from sending unsolicited messages or imposing caller tunes and deductions on Anene’s airtime.
While the High Court awarded N300,000 in general damages, it noted that Anene could not sufficiently prove the claim of 88 calls.
Dissatisfied with the N300,000 award, Anene appealed to the Court of Appeal, arguing that the amount was too low. MTN’s legal team also cross-appealed, claiming that the total deductions from Anene amounted
