➥ CASE SUMMARY OF:
Emerging Markets Telecommunication Services Ltd. (Etisalat) v. Godfrey Nya Eneye (2018) – CA
by “PipAr” B.C. Chima
Court of Appeal – CA/A/724/2014
➥ JUDGEMENT DELIVERED ON:
Wednesday, 23rd May, 2018
➥ AREA(S) OF LAW
Sending unsolicited SMS to mobile phone.
➥ NOTABLE DICTA
⦿ NO NEED FOR REPLY BRIEF WHERE NO NEW ISSUE IS RAISED
The respondent did not raise any new issue for appellant to file a reply brief. The reply brief is discountenanced for being repetitive of what has been canvassed in the main brief. — T.Y. Hassan, JCA.
⦿ EXEMPLARY DAMAGES ARE AWARDED FOR THE PURPOSE OF PUNISHMENT
Exemplary damages are awarded with the object of punishing the defendant for his conduct in inflicting injury on the plaintiff. They can be made in addition to normal compensatory damages and should be made only: a) In a case of oppressive, arbitrary or unconstitutional acts by government, servants; b) Where the defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff, and c) Where expressly authorized by statute – CBN Vs Okojie (2015) 14 NWLR (part 1479) 231 at 242 243. See also Lagos State v Ojukwu (1986) 1 NWLR (part 18) 621 and Alele Williams Vs. Sagay (1995) 5 NWLR (part 396) 441. For exemplary damages to be awarded, it need not be specifically claimed, but facts to justify it must be pleaded and proved. Thus, once facts in the pleadings support the award of exemplary damages, the Court should award it since the adverse party is in no way taken by surprise. — T.Y. Hassan, JCA.
⦿ DAMAGES – WHEN APPELLATE COURT WILL INTERFERE WITH DAMAGES AWARDED
Damages are awarded at the discretion of the trial Court, and so an appeal Court is reluctant to interfere with how the trial Court exercises its discretion unless: a) The exercise is tainted within illegality or substantial irregularity. b) If it is in the interest of justice of interfere. c) The discretion is wrongly exercised. See C.B.N vs. Okojie (supra) and University of Lagos vs. Aigoro (1985) 1 NWLR (part 1) 43 and Salu Vs Egeibon (1994) 6 NWLR (part 349) 23. An appellate Court would also interfere when it is satisfied That: a) The trial Court acted under a mistake of law; or b) The trial Court acted in disregard to some principles of law; or c) The trial Court acted under a misapprehension of facts; or d) The trial Court took into account irrelevant matters or failed to take into account relevant maters, or e) Injustice would result if the appellate Court does not interfere, or f) The amount awarded is ether ridiculously low or ridiculously high, that it must have been a wholly erroneous estimate of the damages – British Airways vs. Atoyebi (2014) 13 NWLR (part 1424) 253 at 265 266; African Newspapers (Nig.) Plc vs. Useni (2015) 3 NWLR (part 1447) 464 at 475 476 and Guardian Newspapers Ltd vs. Ajeh (2011) 10 NWLR (part 1256) 574.
➥ LEAD JUDGEMENT DELIVERED BY:
Tani Yusuf Hassan, J.C.A.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
The Respondent as applicant at the lower Court, by an Amended Application for the enforcement of his fundamental right commenced Suit No. FHC/ABJ/CS/717/2013 seeking against the appellant the following reliefs, inter alia, “A declaration that the Respondent’s unauthorized revealing and/or permitting of the applicant’s registered, private GSM mobile phone account with the respondent to be accessed by third party strangers and made target of unsolicited text messages from these third party strangers with whom the applicant has no relationship or contact and without the applicant’s prior consent and/or option to decline such consent respectively amount to violation of his fundamental human right to privacy of his person and correspondence under Sections 37 and 39(3)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 1 and Articles 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, LFN 2004 and the African Charter on Human and Peoples’ Rights 1981.”
The appellant as respondent therein filed a Notice of Preliminary objection challenging the jurisdiction of the Court, and a counter affidavit in opposition to the applicant’s application. The respondent filed a Further Affidavit. The trial judge, Hon. Justice E.S. Chukwu, considered the preliminary objection and the Application together. He dismissed the preliminary objection and entered judgment in favour of the respondent in the sum of N8 million for sending unsolicited text messages to his phone and the sum of N100,000.00 only being the costs of the action.
Aggrieved with the judgment of the trial Court, the appellant appealed to this Court by an Amended Notice of Appeal dated 27th May, 2015 and filed on the 1st of June, 2015.
➥ ISSUE(S) & RESOLUTION
I. Whether the existence of a cause of action alone conferred jurisdiction on the lower Court to entertain the Respondent’s action irrespective of whether the said action was initiated and or commenced by due process?
RULING: IN RESPONDENT’S FAVOUR.
A. “The argument of the learned counsel for the appellant that in the circumstance of this case, the application for enforcement of fundamental right cannot lie directly to the High Court without exhausting the procedure as laid down in the Nigerian Communication Act will not hold. This is because of the supremacy of the constitution over the Nigerian Communication Act, the provisions of the Act cannot apply to defeat the original jurisdiction of the High Court under Section 46(2) of the 1999 Constitution or to prevent an application to enforce fundamental right brought in the exercise of the right given to a person under Section 46(1) of the 1999 Constitution. As rightly submitted by the respondent, a right vested on a person by the Constitution cannot be taken away by an Act of National Assembly or any other Law.
See Western Steel Works Ltd & Anor Vs Iron & Steel Workers Union of Nigeria & Ors (1982) 2 SCN 1 and Nigerian Army Vs Yakubu (2013) 2 SCNJ 268 where the Supreme Court held that where jurisdiction is conferred on Court by the Constitution, such jurisdiction is not subject to the whims of any other quasi-judicial body or outfit.”
B. “It follows therefore the right vested by Section 46 (1) of the 1999 Constitution can be exercised to seek redress for violation of any fundamental rights guaranteed by Chapter IV of the 1999 Constitution. The trial Court therefore rightly exercised its special jurisdiction conferred on it by Section 46(2) of the 1999 Constitution when it entertained and determined the matter. See Denton West Vs Jack and Ors (2013) 5 SCNJ 748 where the Supreme Court held that the jurisdiction of the High Court under Section 46 to enforce fundamental human rights can be exercised irrespective of where the contravention or threat of contravention arose.”
II. Whether considering the clear provisions of Section 37 and 39(3)(a) of the 1999 Constitution, Article 14 of the African Charter on Human and Peoples Rights and the entire facts and circumstances of this case, the Respondent’s alleged receipt of unsolicited text messages via the Appellants network constitute an infringement of the Respondent’s right to privacy so as to entitle the Respondent to commence action under Fundamental Rights Enforcement Procedure Rules?
RULING: IN RESPONDENT’S FAVOUR.
A. “In essence, paragraph 3 of the counter affidavit of the appellant avoided answering specific deposition in the respondent’s affidavit concerning its provision of Bulk SMS service to organizations and persons by which they have entry into the phone line of a subscriber without first notifying the subscriber or obtaining his consent. It is my view that by giving those unknown persons and organizations access to the respondent’s Etisalat GSM phone number to send unsolicited text messages into it, amount to violation of the respondent’s right to privacy guaranteed by Section 37 of the Constitution, which includes the right to the privacy of a personal’s telephone line. See Nwali vs. EBSIEC & ors (2015) 2 CAR 477 at 508 510.”
III. Whether in the entire facts and circumstances of this case, the sum of N8,000,000.00 (Eight Million Naira) awarded in favour of the Respondent as damages is justifiable?
RULING: IN APPELLANT’S FAVOUR.
A. “In the instant case, notwithstanding that the exemplary damages was claimed, it arose from the action of the appellant accessing the respondent’s mobile number to strangers to be sending unsolicited text messages to the respondent and also through the appellant’s sort code number 30046 where the respondent’s subscription to Foot Bail news was texed to have been successfully renewed when the respondent said he never subscribed to Foot bail news. The respondent pleaded and proved facts, for example Exhibit B1-B67 are the unsolicited text messages sent to the respondent by strangers that are unknown to him. Exhibit B46 is the text message from sort code 30046 sent at 4.28 am telling him that his subscription to Football news was renewed. A text message sent to sort code 30046 by the respondent to stop sending him unsolicited messages on football did not stop but was rather responded by sending him 32 sports adverts and messages within minutes after he had sent the message. These facts pleaded and proved by the respondent were not controverted by the appellant.”
B. “I agree with the respondent that his right to privacy and for the privacy of his telephone has been infringed. However the award of N8,000,000.00k damages is too high. In that vien, we feel obliged to interfere. The award should be reasonable having regard to the circumstances of the case. In our considered view, the amount respondent is entitled to by way of exemplary damages is assessed at N1,000,000.00k (One Million Naira) only. The cost of litigation in the sum of N100,000.00 awarded by the trial Court for the respondent is affirmed.”
“In conclusion, the appeal succeeds in part by way of reduction of the award of N8,000,000.00k as exemplary damages for sending unsolicited text messages to the respondent’s phone line without his consent. The award of N8,000,000.00 is hereby set aside.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)