Appeal Court Slams N15m on MTN Over Unsolicited Messages, Caller Tunes

The Abuja Division of the Court of Appeal has awarded N15 million as general damages against MTN Nigeria Communications Limited, for disturbing one of its customer’s phone numbers with unsolicited messages and caller tunes, without the customer’s subscription to these services.

The Appeal Court passed the judgement, saying that MTN’s action was a violation of the right to privacy and quiet enjoyment of airtime purchased by Ezugwu Emmanuel Anene, a Public Interest Lawyer. The judgement was delivered by a three-man Panel led by Justice Okon Abang, JCA.

The matter arose from the judgement of the High Court of the FCT, delivered by Justice U.P. Kekemeke, on September 22, 2021.

The Claimant, Mr Anene, sought a declaration that the eighty-eight unsolicited calls made by MTN to him at odd hours caused embarrassment, inconvenience, distraction, and anxiety, thereby breaching his right to privacy.

Mr Anene, through his legal team, also sought over N200 million as general damages for the “disturbing unsolicited messages sent to the Claimant weekly”, as well as for the “imposition of caller tunes on the Claimant’s mobile number”. 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.

In defence, 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. Mr Iteade further argued that 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.

“All services complained about by the Claimant were subscribed to by him, and the Defendant merely debited him for the services”,  the Respondent said.

Delivering judgement in the suit, however, the Justices of the Court of Appeal agreed that the unsolicited text messagesaused the Appellant anxiety, adding that, MTN was likely profiting substantially from this practice, and Nigerians “may not know this”.

 “The court opined that the trial court should have awarded exemplary damages against MTN, a foreign company, as a “deterrent”, noting that the money generated from such charges was not legitimate income for MTN.

The Court of Appeal stated: “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.The Court of Appeal delivering the unanimous judgement of the three-member Panel set aside the N300,000 general damages imposed by the lower court.

The Appeal 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 Do Not Disturb (DND) option, but despite these 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 Court of Appeal  concluded. The court also dismissed MTN’s cross-appeal, for lack of merit.