Court of Appeal in Abuja has ordered MTN Nigeria to pay N15 million in damages to a customer over the unlawful deduction of his airtime through unsolicited services.
Gatekeepers News reports that the court in a unanimous decision by a three-member panel of justices, said the regular deduction of airtime of customers by MTN for the auto-renewal of services not subscribed to was fraudulant.
The court added that sending of unwarranted text messages by MTN was a breach of subscribers’ right to privacy under Section 37 of the 1999 Constitution, as amended, and a 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 the aggrieved customer named Ezugwu Anene.
According to Anene; MTN sent him over 244 unsolicited text messages for ‘weekly guidance and counselling’ which he did not subscribe to.
He said that from 2016 to 2018, the company unlawfully deducted N20 from his airtime balance, each time he received the text message on his mobile telephone line: 08030735301.
Anene said MTN continued to deduct his airtime for ‘caller tune services’ that were imposed on him, adding that the unwanted deductions persisted, even though he protested at the company’s Abuja office and also used a code, 2442 which he was told would activate a ‘Do Not Disturb’ service on his line.
The appeal court agreed that the unsolicited text messages caused the appellant anxiety.
The presiding judge, Justice Okon Abang, said MTN was likely profiting substantially from the practice, and its customers might not be aware of it.
He said, “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 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.
The judge said, “In all, I award N15 million in damages in favour of the appellant and against MTN. The appeal succeeds and is allowed.”
Anene had at a high court sitting in Abuja on September 22, 2021, through his legal team, sought over N200 million in general damages for the “disturbing unsolicited messages sent to the claimant weekly,” and for the “imposition of caller tunes 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 added that “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 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.
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 placed in the kit to allow careful review.
The official said MTN 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.
He said, “All services complained about by the claimant were subscribed to by him, and the defendant merely debited him for the services.”
The court awarded N300,000 as general damages to the claimant, noting that the claimant could not sufficiently prove the assertions about the 88 calls.
Dissatisfied with the amount he said was not enough, Anene approached the appeal court for redress. 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.
