Duty of Telecommunication Companies to Protect the Privacy of Customers

CASE TITLE: OMOTAYO v. AIRTEL NETWORKS LTD (2025) LPELR- 80012(CA)
JUDGMENT DATE: 27th Jan, 2025.

JUSTICES: RIDWAN MAIWADA ABDULLAHI
RUQAYAT OREMEI AYOOLA
NTONG FESTUS NTONG

DIVISION: LAGOS

PRACTICE AREA: CONSTITUTIONAL LAW

FACTS:

This appeal borders on the duty of a telecommunication service provider to protect the privacy of its customer.

This appeal is against the judgment of the High Court of Lagos State delivered on 6th November, 2015.

The case of the Appellant is that he purchased a subscriber identification module (SIM) card from the Respondent with a personalized number, 08082866662. There were terms and conditions that governed the use of the Respondent’s prepaid subscriber. Appellant alleged that the Respondent did not only breach the terms and conditions of the contract it held with him but also failed to deal with his data with reasonable diligence. The Respondent admitted the contract with terms and conditions contained in the subscriber’s identification module (hereinafter called SIM card). The terms bind the appellant. The respondent denied any breach of the terms and conditions of the contract on its part. The appellant’s assertion on the release of his call records to a third party was a mere assumption, as the Respondent received no such request from anybody. Upon the receipt of the Appellant’s letter of 7/6/2010, the Respondent investigated the complaint thoroughly and found it untrue, and it was communicated to the Appellant by letter of 9/6/2010. The appellant contended that the contract between them was not only regulated by the terms of the SIM card but also by the Nigerian Communication Act Cap 97 LFN 2004 and the regulations made by the NCC and the Consumer Code of Practice Regulation 2007. The case proceeded to trial.

At the conclusion of the trial, the trial Court delivered judgment in favour of the Respondent. Aggrieved by the decision of the trial Court, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The appeal was determined on the following issues:

1. Whether the trial court was right to hold that the relationship between the Appellant and Respondent was not governed by statutory laws and subsidiary legislation made to regulate the telecommunications industry and whether the trial court was right in refusing to hold that the Respondent is bound by law to ensure that the phone records of the appellant are protected and not unlawfully disclosed to third parties.

2. Whether the trial court was right in refusing to place evidential value on the phone records of the Appellant which were tendered and admitted by Respondent’s witness as a document that emanated from the custody of the Respondent.

COUNSEL SUBMISSIONS:

Learned Counsel for the Appellant, Ahmed Akanbi, Esq., submitted that a miscarriage of justice was occasioned by the trial court’s refusal to apply the provisions of the Nigeria Communications Act and the Consumer Code of Practice Regulations 2007 despite accepting the appellant’s argument of their applicability. Counsel referred to the Supreme Court’s decision in Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (Pt 1405) 165 at 194. Counsel contended that statutory laws and subsidiary legislation are superior to common law principles of contract. Counsel contended further that the Respondent operates under a regulated industry and cannot argue that it is not bound by the statutory laws, regulations, and subsidiary legislation made by the Nigeria Communications Commission. Counsel referred to the following authorities. Ugwuanyi v. NICON Ins. Plc. (2013) 11 NWLR (Pt. 1366) 546 at 608 para. A to C, Section 122 of the Evidence Act 2011, Eagle Super Pack (Nig.) Ltd. v. A.C.B. Plc. (2006) 19 NWLR (Pt. 1013) page 20 @ 26-27, I.M.N.L. v. Nwachukwu (2004) 13 NWLR (Pt. 891) Pg. 543 at 546. Counsel argued that it is not the law that parties to a contract have to agree on the application of a law that was enacted to specifically regulate their business relationship. He stated that the court was under obligation to take cognizance of Exhibit C9, which is the Certified True Copy of the Consumer Code of Practice Regulation 2007. Counsel submitted that the learned trial judge erred by upholding the common law principle of contract that only terms contained in the SIM card pack admitted as Exhibit D1 are to be taken into account to the exclusion of the statutory laws and subsidiary legislations enacted to regulate the telecommunications sector.

On the other hand, Learned Counsel submitted that it is not in dispute that by the Appellant purchasing the Respondent’s SIM card in 2007, a contractual relationship was created between the parties. He submitted that it is trite law that parties are bound by their contracts and the courts must respect the sanctity of such contracts. Counsel referred to BFI Group Corporation vs Bureau of Public Enterprises (2012) LPELR-9339, Koiki vs Magnusson (1999) 8 NWLR (Pt 615) @ 514. Counsel contended that Exhibit D1 exhaustively contains clauses ensuring data protection of the SIM card from unauthorized access and that it would not have been the intention of the parties that the Respondent would be liable to the Appellant for allegations bordering on unsubstantiated leakage of Exhibit C4. Counsel referred to Multichoice Nigeria Limited vs Bankole Azeez (2010) LPELR and to clause 21 of Exhibit D1. Counsel argued that the said clause 21 is the express intention of the parties, and nothing can be implied from it. Counsel referred to Ibama vs. Shell Petroleum Dev. Co. (Nig) Ltd. (1998) 3 NWLR (Pt 542). He submitted that the implied terms that the Appellant seeks to rely on by the provisions of the Nigeria Communications Act, Exhibit C9, and the 1999 constitution contradict and violate clause 21 of Exhibit D1. Counsel submitted that the trial court was right to hold that the provisions of the laws cannot be incorporated into the agreement of the parties.

DECISION/HELD:

In the final analysis, the appeal was allowed.

RATIO:

CONSTITUTIONAL LAW- RIGHT TO PRIVACY: Whether a telecommunications service provider with access to its customer(s) personal information is responsible for safeguarding the same

“In my estimation, the Respondent’s primary duty as a telecommunication service provider is to keep safe customers’ personal information without divulging the same to a third party. This is particularly so because where such information is to be released, the Appellant must, as a matter of preference, consent to it.” Per NTONG, J.C.A.

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