The court of appeal in Abuja has ordered MTN Nigeria to pay N15 million in damages over the unlawful deduction of a subscriber’s airtime through unsolicited services.
On Friday, the appellate court in a unanimous decision by a three-member panel of justices, described as fraudulent, the regular deduction of airtime of customers by the telecommunication giant, for the auto-renewal of services not subscribed to.
According to the court, the sending of unwarranted text messages by the company amounted to a breach of 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 judgement followed an appeal marked: CA/ABJ/CV/137/2022, brought before the court by an aggrieved customer, Ezugwu Anene.
Anene had approached the court, alleging that he received over 244 unsolicited text messages from MTN for ‘weekly guidance and counselling,’ a service he said he did not subscribe to.
The appealant told the court 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 alleged that MTN continued to deduct his airtime for ‘caller tune services’ that were imposed on him.
He told the court that 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.
Responding, the appeal court agreed that the unsolicited text messages caused the appellant anxiety.
The judge said MTN was likely profiting substantially from the practice, and Nigerians “may not know this”.
“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,” the judge said.
The judge, therefore, set aside the N300,000 general damages imposed by the high court.
The court agreed with the high court that the claimant had complained to MTN and made a personal complaint to its customer care team.
It also agreed that the claimant had activated the DND option, but despite the efforts, MTN persisted in sending unsolicited messages.
“In all, I award N15 million in damages in favour of the appellant and against MTN. The appeal succeeds and is allowed,” the judge said.
MTN SAYS ANENE SUBSCRIBED TO SERVICES
On September 22, 2021, at a high court sitting in Abuja, Anene, through his legal team, had sought over N200 million in general damages for the “disturbing unsolicited messages sent to the claimant weekly,” as well as for the “imposition of callertunes on the claimant’s mobile number.”
He told the court that although he subscribed to MTN’s network services, he never signed up for the weekly clarion child guidance, counselling, or caller tune services provided by MTN.
Anene 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 added that 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.
On its part, MTN, represented by its staff member Emmanuel Iteade, informed the high court that when a prospective subscriber purchases a SIM starter kit, the prepaid terms and conditions are clearly placed in the kit to allow careful review.
The official said the company did not breach the claimant’s right to privacy or the quiet enjoyment of his airtime and did not make any fraudulent or illegal 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,” Iteade said.
The court awarded N300,000 as general damages but noted that the claimant could not sufficiently prove the assertions about the 88 calls.
Dissatisfied with the N300,000 awarded, the claimant approached the appeal court for redress, arguing that the amount was too low.
MTN’s legal team also cross-appealed, saying the total deductions from the claimant amounted to about N14,000 and that the N300,000 award was generous.