The Court of Appeal in Abuja has upheld a customer’s right to privacy, ordering MTN Nigeria Communications Limited to pay N15 million in general damages for unsolicited messages and caller tunes.
The judgment, delivered on Friday, recognized the violation of Barrister Ezugwu Emmanuel Anene’s privacy and his right to enjoy airtime without disturbance.
The judgment was delivered on Friday by Justice Okon Abang.
The case originated from a judgment by the High Court of the Federal Capital Territory (FCT), delivered by Justice U.P. Kekemeke on September 22, 2021.
Anene filed the suit seeking a declaration that 88 unsolicited calls made by MTN at odd hours caused him embarrassment, inconvenience, distraction, and anxiety, constituting a breach of his right to privacy.
Barrister Anene, through his legal team, also sought over N200 million in general damages for the unsolicited messages sent to him weekly and the imposition of caller tunes on his mobile number without consent.
Anene argued that while he subscribed to MTN’s network services, he never consented to or subscribed for the weekly clarion child guidance, counseling, or caller tune services imposed 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 March 21, 2018, at inappropriate hours.”
He further contended that his refusal to answer calls from certain unknown numbers, due to the recurring unsolicited calls, caused him to miss important business opportunities.
MTN, represented by Emmanuel Iteade, argued before the High Court that its terms and conditions are clearly included in the SIM starter kit for prospective subscribers to review.
MTN maintained that it did not violate Barrister Anene’s right to privacy or disrupt his quiet enjoyment of airtime.
The company also denied making any fraudulent or unauthorized deductions from the claimant’s 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.
The High Court ruled that the numerous unsolicited text messages, callertunes, and subsequent airtime deductions imposed on Barrister Anene without his consent constituted a breach of his right to privacy and the quiet enjoyment of his airtime.
The court issued a perpetual injunction restraining MTN from sending unsolicited messages, imposing callertunes, or making deductions from the claimant’s airtime without his explicit subscription.
The High Court awarded Barrister Anene N300,000 as general damages but noted that he could not sufficiently prove his claims about the 88 unsolicited calls.
Dissatisfied with the amount, Anene appealed to the Court of Appeal, arguing that the award was inadequate.
Meanwhile, MTN’s legal team cross-appealed, contending that the total deductions from Anene’s airtime amounted to only about N14,000 and that the N300,000 award was overly generous.
The Court of Appeal found that the unsolicited text messages caused the appellant anxiety and noted that MTN likely profited significantly from the practice, which many Nigerians might be unaware of.
The court criticized the trial court for not awarding exemplary damages against MTN, a foreign company, as a deterrent.
It emphasized that the money generated from such unauthorized charges did not constitute legitimate income for the company.
“The judge stated, “If MTN had sent unsolicited messages to 10 million phones at the time, owned by innocent Nigerians, it would have unlawfully enriched itself to over a trillion naira.”
Delivering the unanimous judgment of the three-member Appeal Court panel, the judge set aside the N300,000 general damages awarded by the High Court.
The Appeal Court concurred with the High Court’s findings that Barrister Anene had complained to MTN and personally contacted its customer care team.
It also acknowledged that Anene had activated the Do Not Disturb (DND) option on his phone, yet MTN continued to send unsolicited messages despite these efforts.
“In all, I award N15 million in damages in favour of the appellant and against MTN. The appeal succeeds and is allowed,” the judge declared.
