The Court of Appeal has ordered MTN Nigeria Communications Limited to pay N15 million in general damages for bombarding a customer with unsolicited messages and caller tunes despite the customer not subscribing to the services.
Justice Okon Abang of the Abuja appellate court issued the ruling while delivering judgment on an appeal filed by public interest lawyer Ezugwu Anene on Friday.
Anene argued that MTN made 88 unsolicited calls to his phone at odd hours, causing him embarrassment, inconvenience, distraction, and anxiety, thereby violating his right to privacy.
He sought N200 million in general damages, citing MTN’s imposition of caller tunes and weekly unsolicited messages. Anene further stated that, while he subscribed to MTN’s network services, he never opted for the weekly clarion child guidance, counseling, or caller tune services offered by the company.
He stated that “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.”
The lawyer also said 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.
In response, MTN, represented by staff member Emmanuel Iteade, told the lower court that the prepaid terms and conditions are clearly provided in the SIM starter kit for prospective subscribers to review thoroughly.
Iteade asserted that MTN did not violate the claimant’s right to privacy or disrupt his enjoyment of airtime, nor did the company engage in any fraudulent or unauthorized 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.
The lower court, in its judgement, held that Section 37 of the 1999 Constitution, as amended, guaranteed and protected citizens’ privacy, including their homes, correspondence, telephone conversations, and telegraphic communications.
The judge observed that during cross-examination, MTN’s witness admitted that the font size of the company’s terms and conditions was so small he could not read it.
The High Court ruled that the unsolicited text messages and caller tunes sent to the claimant’s phone without his consent, along with deductions from his airtime, violated his right to privacy and quiet enjoyment of his phone and airtime. The court issued a perpetual injunction restraining MTN from sending unsolicited messages or imposing caller tunes and deductions on the claimant’s airtime.
The court awarded N300,000 in general damages but noted that the claimant could not sufficiently prove his claim about the 88 calls. Unsatisfied with the amount, the claimant appealed, arguing it was too low.
MTN’s legal team cross-appealed, contending that the total deductions amounted to about N14,000 and that the N300,000 award was excessive.
In his judgment, Justice Okon Abang held that MTN’s actions violated the claimant’s right to privacy and quiet enjoyment. The appellate court concurred, noting that the unsolicited messages caused the appellant anxiety and suggesting that MTN likely profits significantly from such practices, which many Nigerians may not realize.
Justice Abang further criticized the trial court for not awarding exemplary damages against MTN, a foreign company, to serve as a deterrent.
He said, “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.
While reading out the unanimous judgment of the three-member appeal court panel, Justice Abang set aside the N300,000 general damages imposed by the high court and awarded N15m against the telecommunications company.
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