The Court of Appeal in Abuja has ordered MTN Nigeria Communications Limited to pay N15 million in general damages for sending unsolicited messages and callertunes to a Nigerian customer, Barrister Ezugwu Emmanuel Anene, without his consent.
On Friday, Justice Okon Abang of the Court of Appeal delivered the ruling, stating that MTN’s actions constituted a violation of Anene’s right to privacy and the enjoyment of the airtime he purchased.
This case stemmed from a prior ruling by the High Court of the Federal Capital Territory, made by Justice U.P. Kekemeke on September 22, 2021. Anene had sought a declaration that the 88 unsolicited late-night calls from MTN caused him embarrassment, inconvenience, distraction, and anxiety, thereby infringing upon his privacy rights.
Seeking over N200 million in damages for the regular unsolicited messages and the imposition of callertunes on his mobile number, Anene asserted that while he was an MTN subscriber, he never opted for the weekly services related to child guidance or caller tunes provided by MTN. He complained that between July 2016 and March 21, 2018, he received a barrage of unsolicited messages and experienced unauthorized deductions from his airtime.
He further claimed that his reluctance to answer calls from unknown numbers led to missed important business opportunities, as the unwanted calls became a source of embarrassment.
MTN, represented by Emmanuel Iteade, claimed that the prepaid terms and conditions were clearly outlined in the SIM starter kit, allowing customers to review them thoroughly. The company denied violating Anene’s privacy or making any unlawful deductions from his airtime, contending that all services he complained about had been subscribed to by him.
The High Court ruled that Section 37 of the 1999 Constitution, as amended, ensures the protection of citizens’ privacy, encompassing their homes, correspondence, and telecommunications. The judge noted that MTN’s witness admitted that the referenced terms and conditions were difficult to read, which the court considered significant evidence.
The court ruled that the myriad unsolicited messages and callertunes sent without Anene’s consent, along with the deductions from his airtime, breached his right to privacy. It permanently restrained MTN from sending unsolicited messages or imposing callertunes on his line. While the High Court initially awarded N300,000 in damages, it noted that Anene could not adequately substantiate his claim regarding the 88 calls.
Displeased with the amount awarded, Anene appealed to the Court of Appeal, arguing that the compensation was insufficient. Conversely, MTN’s legal team contested the ruling, claiming the total deductions from Anene amounted to about N14,000 and that the N300,000 award was excessive.
**What the Appeal Court Decided**
The Appeal Court acknowledged that the unsolicited messages inflicted anxiety on Anene and suggested that MTN likely profited from this practice, which many Nigerians may not understand. The court stated that exemplary damages should have been awarded against the foreign company as a deterrent, emphasizing that the income generated from such charges was illegitimate.
The judge remarked, “If MTN had sent unsolicited messages to 10 million phones owned by unsuspecting Nigerians, it would have unlawfully enriched itself to over a trillion naira.”
In a unanimous verdict, the three-member Appeal Court panel overturned the High Court’s award of N300,000 in general damages. They affirmed that Anene had previously complained to MTN and activated the Do Not Disturb option, yet the company continued to send unsolicited messages.
Ultimately, the judge ruled in favor of Anene, awarding him N15 million in damages. “The appeal is successful and is hereby granted,” the judge concluded.
