Appeal Court Seeks N3million In Damages

MTN Unsolicited Messages: The Appeal Court in the Federal Capital Territory, Abuja, has ruled that it is a violation of a subscriber’s right to privacy for MTN to grant unknown persons and organizations access to a subscriber’s telephone line for the purpose of sending unrequested messages.

A lawyer and MTN subscriber, Mr Godfrey Eneye, had filed the suit marked FHC/ABJ/CS/431/2012 before Justice Ademola, contending that MTN had violated his rights by revealing or permitting his private line registered with the network provider to be accessed by other organisations and persons ‘who sent unsolicited, irritating and annoying messages to the said line’.

He stated in his suit before the Federal High Court that, “The respondent (MTN) offers and provides a bulk SMS message service to customers and permits the sending of bulk messages by individuals, organisations and other bodies through their network upon certain specified conditions agreed between the respondent and the respective subscribers to the said bulk SMS service.”

In response, MTN had claimed that it did not disclose the subscriber’s phone details to third parties.

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However, in a unanimous agreement, a three-man bench of the Court of Appeal led by Justice Tinuade Akomolafe-Wilson, held in its judgment that the said act by MTN contravened the subscriber’s right to privacy as provided under section 37 of the 1999 Constitution.

Presenting the lead judgment of the Appeal Court, Justice Emmanuel Agim held that uncountable text messages sent to subscribers without their consent were a violation of subscribers’ basic right to privacy of his telephone conversations, correspondence, his person, telephone line and telephone message inbox.

Justice Agim held that:

“By giving those unknown persons and organizations access to the respondent’s MTN GSM phone number, to send text messages into it, the appellant violated the respondent’s fundamental right to privacy guaranteed by Section 37 of the Constitution which includes the right to the privacy of a person’s telephone line.

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“The said section 37 of the 1999 Constitution provides that, ‘The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic conversations is hereby guaranteed and protected’.

“The innumerable text messages without his consent at all times is a violation of his fundamental right to the privacy of his telephone conversations, correspondence and his person and telephone line and telephone message inbox.”

The Justice also held that  MTN’s act went against Rule 14(1)(b), (2) and (3) of the General Consumer Code of Practice Rules and the Consumer Code of Practice Regulations 2007, both of which were regulations made on the strength of section 70 of the Communications Act.

According to Justice Agim, the two regulations ‘require the appellant (MTN) to maintain a directory enquiry facility containing information of all its subscribers in Nigeria and allow access to same by third parties but subject to the prior notification of the subscriber’.

Justice Akomolafe-Wilson who headed the court’s three-man panel and another member, Justice Olabisi Ige, supported the lead judgment delivered by Justice Agim.

Although the Abuja Court of Appeal delivered the judgment on May 12, 2017, its copy was made available to Punch correspondent on Sunday, June 4.

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The judgment was on an appeal with the number, CA/A/689/2013, and was filed by MTN in opposition to the earlier verdict of Justice Adeniyi Ademola of the Federal High Court in Abuja.

The verdict by the Appeal Court upheld to a significant extent, the judgment by Justice Ademola who had held that MTN’s defence filed in response to the alleged breach, was evasive.

In his judgement delivered on May 15, 2013, Justice Ademola had awarded N5m as exemplary and aggravated damages against MTN. However, the Court of Appeal brought it down to N3m based on the fact that the lower court did not provide any explanation for the award.

But the appeal court stated emphatically, part of Justice Ademola’s decision to the effect that ‘the award of 10 per cent interest on the judgment sum (N3m) from the date of the judgement until the judgement sum is fully and finally paid to the respondent is hereby affirmed’.

“The appellant did not show or even suggest that it notified the respondent before giving access to his line to the senders of the text messages,” Justice Agim ruled.

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