ABUJA — The Court of Appeal sitting in Abuja, on Friday, ordered MTN Nigeria Communications Limited to pay N15million damages over the unlawful deduction of a subscriber’s airtime through unsolicited services.

The appellate court, in a unanimous decision by a three-member panel led by Justice Joseph Oyewole, described as fraudulent, the regular deduction of airtime of customers by the telecommunication giant, for the automatic renewal of services not subscribed to.

It further held that sending of unwarranted text messages by the company amounts 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 Consumer Code of Practice Regulations.

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The judgement followed an appeal marked: CA/ABJ/CV/137/2022, which was brought before the court by an aggrieved customer, Mr. Ezugwu Anene.

Anene, who is a legal practitioner, had approached the court, alleging that he received over 244 unsolicited text messages from MTN for Weekly Guidance and Counseling, a service he said he did not subscribe to.

He 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.

The Appellant alleged that MTN continued to deduct his airtime for a CallerTune Service he said was 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, DND, service on his line.

Even though a High Court of the Federal Capital Territory, FCT, had on September 29, 2021, entered judgement in his favour, however, dissatisfied with the sum of N300, 000 that was awarded to him as damages, the Appellant, brought the matter before the Court of Appeal.

In its lead judgement that was prepared and delivered on Friday by Justice Okon Abang, the appellate court said it was satisfied that the damages that was awarded by the trial court did not meet the justice of the case.

It held that the Appellant deserved aggravated and exemplary damages for the violation of his rights by the Respondent, noting that the trial court lumped the two together to arrive at the N300, 000.

More so, the appellate court dismissed MTN’s claim that the Appellant was bound by the terms and conditions in the Starter Pack of its Sim Kits, which it said allowed him to stop the auto-renewal of subscription for its products or services.

According to the appellate court, evidence adduced before it showed that even the person that represented the company and testified before the trial court, could not read the prepaid terms and conditions written on the said Starter Pack as the letters were tiny, ineligible and unreadable.

“The point should be made that a prepaid terms and condition is not an instrument to invade customers’ privacy.

“What is the purpose of inserting terms and conditions if it cannot be read?” the appellate court queried.

The court further noted that the Appellant’s deposition that he received calls from 16 different telephone numbers belonging to MTN, at odd hours of the night, was not controverted.

It held that MTN’s admittance that only the sum of N14, 520 was deducted from the Appellant’s account within the period, was a sufficient ground to establish the case against it.

According to the court, such unlawful withdrawals from over 49million unsuspecting Nigerian subscribers, would run into trillions of Naira.

“A court of law should not allow this unethical practice to subsist,” Justice Abang held, saying “the unlawful deductions were purely for the self-enrichment of the Respondent.”

It described the case as a public interest litigation that seeks to stop illegal deductions and abuse of subscriber’s right to quiet enjoyment of airtime they paid for.

Consequently, the Appeal Court awarded N5m to the Appellant as general damages for the 244 unsolicited messages, N5m for the imposition of Caller Tunes on him and another N5m for “embarrassment, inconvenience, distractions and anxiety,” he suffered as a result of 88 different calls the Respondent placed to his line at odd hours.

It issued an order of perpetual injunction stopping the telecommunication company from further sending unsolicited messages to the Appellant or making illegal withdrawals from his airtime.

The appellate court also awarded N100, 000 to the Appellant to cover the cost of the litigation.

It equally dismissed with a cost of N200, 000, a Cross Appeal that MTN filed to set aside the earlier judgement of the trial court.

It held that the damages would attract 10 percent interest per annum, until the judgement cost is liquidated.

The other member of the panel that concurred with the lead judgement on Friday, was Justice Peter Obiora.

The Appellant had prayed the court to grant him a total sum of N300m as general, exemplary and aggravated damages for the breach of his rights as a subscriber.