⦿ CASE SUMMARY OF:
Adeyemi Ibironke v. MTN Nigeria Communications Limited (2019) – CA
⦿ LITE HOLDING
In a civil case, the burden is usually on the plaintiff to prove. Where breach of privacy is alleged, the plaintiff has the duty to prove such breach of its’ privacy.
The mere coming to Court by the defendant or its’ learned counsel can do away with the need to file a memorandum of appearance.
The rules of court are subject to the justice of the case. Justice comes before the rules of court.
⦿AREA OF LAW
– Administrative Law
– Memorandum of appearance.
– Breach of right to privacy.
MTN Nigeria Communications Limited
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
MOHAMMED LAWAL GARBA, J.C.A.
* FOR THE APPELLANT
* FOR THE RESPONDENT
– N. Taiya (Mrs.).
⦿ FACT (as relating to the issues)
In the Suit No. FHC/L/CS/1377/2014 filed by the Appellant before the Federal High Court sitting at Lagos (Lower Court), he had claimed the following reliefs against the Respondent –
1. A declaration that the Defendant’s action of sending the same message to the Plaintiff’s phone every ten to twenty seconds constitute a nuisance which unduly interferes with the Plaintiff’s comfortable and convenient use and enjoyment of his MTN line.
2. A declaration that the Defendant’s act of surreptiously obtaining and retaining information from the Plaintiff’s SIM card on her database constitutes a violation of the Plaintiff’s right to privacy.
3. The sum of N5,000,000.00 (Five Million Naira) being general damages for the Defendant’s acts constituting a nuisance.
4. Punitive damages for the Defendant’s violation of the Plaintiff’s privacy.
5. Cost of this suit and attorney fees.
In reaction to the claims, the Respondent filed a Statement of Defence and raised a preliminary objection challenging the jurisdiction of the Lower Court to entertain and adjudicate over the suit in respect of the subject matter thereof, which was nuisance.
After hearing on the objection and the merit of the suit, the Lower Court in a judgment delivered on 8th February, 2017, dismissed both and being aggrieved by the dismissal of his Suit, the Appellant brought this appeal by the Notice of Appeal dated 10th March, 2017.
1. Whether the Appellant did in fact fail to raise the issue of non-filing by the Respondent of a memorandum of appearance at the earliest opportunity?
2. Whether the Appellant proved his claim as required by law on the evidence before the Lower Court?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. From the position of the law, in the absence of any complaint by the Appellant’s Counsel that the non-filing of a memorandum of appearance by the Respondent’s Counsel occasioned any prejudice to the Appellant’s presentation of the Appellant’s case in the conduct of the proceedings before the Lower Court and the fact that he had freely and voluntarily participated in the proceedings, his arguments for the Court to hold that all the processes filed by the Respondent’s Counsel in the case are incompetent on the ground of failure to comply with the Rules of the Lower Court providing for the filing of a memorandum of appearance, is nothing but legalistic entrustment and crass technicality that is pedantic.
ii. The appearance can be either by the formal filing of a memorandum of appearance or by physical appearance of party or Counsel representing the party.
iii. In addition, as shown earlier, the objection by Appellant’s Counsel was raised in July; about two (2) months after the processes filled by the Respondent’s Counsel were regularized by the Lower Court at the proceedings of 19th May, 2015 without objection by him. On that ground, for raising it two (2) months after the Respondent’s processes were regularized, unopposed by the Appellant’s Counsel and after he had formally reacted to them in the proceedings, it was clearly an afterthought and belated to ground the statement by the Lower Court that the objection by Counsel to the nonfiling of memorandum of appearance was not timeously raised by him. In the above premises, the arguments by Appellant’s Counsel on this issue are unsustainable in law and so lacking in merit.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I should state right away that the evidence adduced by the Appellant did not show that any information was accessed and retained by the Defendant in its database, from his sim card beyond or outside its ordinary business of providing digital mobile cellular and data services to its registered customers such as the Appellant. The fact that messages or notifications were sent to the sim card of the Appellant by the Respondent does not alone, show that any unauthorized information was accessed from the Appellant’s sim card or that he was subscribed to a particular service, e.g. MTN Back up, without his consent or authority. Although the first unsolicited message said to have been sent to and received by the Appellant on the 13th August, 2013 was one welcoming him to the MTN Back-up service, making him to assume that he was registered for the service which he did not apply nor request for, the Respondent has explained that the service is one which a subscriber may have access to store his contact details and access them in the event of a lost sim or replacement of a phone line. The service is therefore not one which involved unauthorized accessing and retaining of subscribers information from his sim card.
ii. Without any difficulty, after a careful and calm look at the evidence before the Lower Court, I readily agree with it that there was no hard, and I would add credible and satisfactory evidence, to establish the alleged breach of the Appellant’s privacy by such messages or notifications. The messages may be inconvenient and sometime irritating or even annoying since they were unsolicited for and may in-appropriate cases, constitute a nuisance that may be actionable, but the Appellant did not set out the details of the messages and notifications which reasonably interfered with his use and enjoyment of the sim card for which he subscribed and was registered with the Respondent.
Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended);
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
UTC Nigeria Limited v. Pamotei (1989) 2 NWLR (103) 244, the apex Court had stated that: – “The Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For the Courts to read the rules in the absolute without recourse to the justice of the cause, will be making the Court slavish to the Rules. This certainly is not the raison d’etre of the Rules of Court.”
Nneji v. Chukwu (1988) 6 SCNJ, 132, (1988) 3 NWLR (1981) 18, the apex Court had said that:- “Rules of Court are made to help the Court in its primary duty and objective, namely; to do justice to the parties by deciding on the merits of their case. These Rules are mere handmaids to justice and inflexibility of the Rules will only served to render justice grotesque. It will therefore be undesirable to give effect to rules which merely enable one party to score, not a victory on the merits, but a technical knock-out at the expense of a hearing on the merit.”
Sosanya v. Onadeko (2005) 8 NWLR (926) 185, concisely put the position thus: – “It is good law that rules of Court are made for the Courts and not the other way round and that is, the Courts are made for their rules. This means that if compliance with rules of Court, will cause injustice or miscarriage of justice in the case, the Court in its choice of doing substantial justice, will detract or move away from the rules of Court.”
Ebe v. COP, per Onnoghen, JSC had held that: – “The word ‘appearance’ is defined as a coming into Court as a party or interested person, or as a lawyer on behalf of a party or interested person, especially a defendant’s act of taking part in a law suit, whether by formally participating in it or by an answer, demurer or motion or by taking post judgement steps in the law suit in either the trial Court or an appellate Court. An appearance can either be personal by the party to the action or appeal or through his legal practitioner. The word signifies or designates the express or overt act by which a party against whom an action has been instituted or who seeks redress from the Court of law submits himself to the jurisdiction of the Court. The act of appearing in Court may be expressly made by formal memorandum of appearance or to physically appear and make oral declaration or statement to that effect or may be implied from some act done with the intention of appearing and submitting to the jurisdiction of the Court.”
Adediran v. Interland Transport Limited (1991) 1 NWLR (214) 155, Belgore, JSC, defined “nuisance” as follows: – “Nuisance is an act or omission tending to interfere with, disturb or annoy a person or persons in the exercise or enjoyment of a right belonging to that person or persons; if the person whose right is so infringed is an individual, the nuisance is a private one, but when it affects the public or a class of the public, it is then a public nuisance.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
I would like to say that the moment a Counsel appears physically before a Court and announces that he represents a party in the case, and the Court and other parties accept the appearance by continuing and conducting the proceedings of the case thereafter, the party who is represented by the said Counsel had practically submitted to the jurisdiction of the Court and has shown and disclosed an unqualified intention of the party to either prosecute or defend the case. After all, appearance is the process; in whatever form, by which a person against whom a suit had been brought or filed in a Court of law, shows his intention to defend the suit and submit himself to the jurisdiction of the Court. – GARBA, J.C.A. Ibironke v. MTN (2019)