BEING A PRESENTATION BY O. G. CHUKKOL ON “RIGHTS OF CONSUMERS/SUBSCRIBERS OF TELECOMMUNICATIONS SERVICES IN NIGERIA” AT A WEBINAR ORGANIZED BY ATTORNEYS CHAMBERS, FACULTY OF LAW, ABU, ZARIA ON THE 23RD OF MARCH, 2020
Despite being a late entrant into the GSM market, Nigeria has outpaced many countries across the globe in terms of market size and telephone penetration. According to Nigerian Communications Commission, there were 184,426,187 active subscribers on telecommunication networks as at December 2019, as against 174,012,136 recorded in January 2019 and 172,871,094 recorded in December, 2018.
Telecom is the only sector in the Nigeria’s economy which has continued to outperform its equivalent in other jurisdictions including in economies of more advanced nations across the globe. Nigeria currently ranks among the top five fastest growing telecom markets in the world. It shares the same podium with India, China and other top economies on this.
It is unfortunate however, that with the rapid growth of the industry and the consequent expansion of its consumer base, consumer dissatisfaction is still prevalent. Consumer complaints against telecommunications services providers in Nigeria include poor quality service, wrong billing, unsolicited messages and exploitative automated services. The telecom companies that we have in Nigeria today are:
•Econet Wireless (now Airtel),
•Globacom (the unabashedly pan-Nigerian network with global reach) and
•Etisalat (now 9Mobile).
The terms licensee, service provider or operator shall be used interchangeably in this paper to refer to an entity that provides the consumer with telecommunications services. This paper will examine the rights of subscribers and the means of enforcing those rights
1. Regulatory Framework
The main law that regulates the telecommunication industry is the National Communications Act. Others are the National Environmental Standards and Regulatory Enforcement Agency, (NESREA) Act; the constitution of the Federal Republic of Nigeria, 1999 as amended; Federal Competition and Consumers Protection Act, 2019 etc. However, for the purpose of this discourse, we would rely more on the NCA but passing reference would be made to other laws.
2. Nigerian Communications Act
The Nigerian Communications Act is an Act of the National Assembly pursuant to the enabling provisions of Section 4(2), Items 46 & 68 of Part I and Paragraph 2(b) of Part III, Second Schedule to the 1999 Constitution. Section 2(c) – (f) provide for the objectives of the Commission. While Section 4(a), (b), (l) & (n) provide for its functions. Section 4(a), (p) and (q) enjoin the Commission to protect consumers from unfair practices of licensees and other persons in the supply of telecommunications services and facilities. To develop performance standards and indices relating to the quality of telephone and other telecommunications services and facilities supplied to consumers and to monitor charges paid by consumers and the performance of the licensees. The above referred provisions impose a duty on licensees, authorized carriers and other providers of telecommunications services and infrastructure to meet their commercial obligations.
Section 12(1) which empowers the Commission to issue licenses, while Section 15(g) empowers it to regulate and monitor the conduct of the licensee. The result is that although the Act provides an enabling environment for telecommunications contracts, the terms and conditions have already been predetermined by the Commission and the Licensees before a consumer purchases the line.
It is also charged with the responsibility of developing and monitoring of performance standards and indices relating to the quality of communications services and facilities supplied to consumers in Nigeria having regard to the best international performance indicators and to handle disputes between operators, subscribers or any other person involved in the communications industry, using such dispute resolution methods as the Commission may determine from time to time including mediation and arbitration.
Under sections 70 and 106 of the Act, the Commission is empowered to make and publish regulations and Guidelines for any matter for which the Act makes express provision and for such other matters as are necessary for giving full effect to the provisions of the Act and for their due administration. In the exercise of this power, the Commission has made and published several regulations and guidelines, many of which are relevant to consumer protection and among them are:
•Consumer Code of Practice Regulations 2007 (CCPR 2007),
•Quality Service Regulations, 2013
•Dispute Resolution Guidelines
•NCC (Registration of Telephone Subscribers) Regulations, 2011 Etc.
There seems to be no consensus among writers and legal draftsmen on the precise meaning of the term. Generally, however, the term refers to a prospective or purchaser as well as the ultimate users of goods and services.
The NCA uses the term consumer and subscriber interchangeably to mean “any person who subscribes to and uses a communication service.”
3. Rights of telecommunications service consumers
The rights of consumers of telecommunications service in Nigeria as can be garnered from the relevant provisions of the Act as well as the regulations and guidelines made under it include:
right to information
right to quality services
right to fair charges and accurate billing
right to privacy and protection of personal information Etc.
It should be noted that the relationship between a licensee and a subscriber is contractual with terms spelt out in the SIM pack purchased by the consumer. There may be other rights and obligations to be stipulated in the contract
3.1 Right to Information
Every subscriber is entitled to certain basic information relating to the product or service that they want to purchase. Paragraph 6(1) of the Code of Practice Regulations 2007 (CCPR 2007) provides that licensees shall provide consumers with information on their services that is complete, accurate, and up-to-date and in simple, clear language. Licensees are urged to “endeavour to respond in a timely manner to consumers’ requests for information on their services.
Information on prices and conditions for all services offered by a particular licensee shall be provided free of charge in print or electronic format at all retail outlets where the licensee’s services are sold (including on each licensee’s web site) and on the front section of any subscriber directories published by the licensee. Any change in tariff rates shall be approved by the Commission and prior notice of such a change shall be given to subscribers to be affected to by the change in a manner that will enable them comment on the charge to the Commission.
The Code also mandates service providers to provide the consumer with information regarding any compensation, refund or other arrangements, which may apply if contracted quality service levels are not met, along with the procedures and methods for resolving disputes in respect of the service contract; free access to operator assistance at all times, and on request, free directory of all subscribers on the same network within the consumer’s local area.
The justification for this is that it is only when a consumer is in possession of the relevant information relating to a product or a service that he or she can make an informed choice to purchase or use the product or service.
SIMPACKS ARE ALWAYS SEALED.
But there is always a problem. Telecommunication operators always seal their SIM packs. Is it possible for one to get the necessary information before deciding to purchase the SIM? Secondly, are those terms and conditions binding? This was an issue in the case of HON. JUSTICE PATRICK I. AMAIZU v. MTN NIGERIA COMMUNICATIONS LIMITED (2017) LPELR-43947(CA). The Appellant, a retired Justice of the Court of Appeal, travelled to the United States sometime in 2007 with his wife and stayed for six months, and loaded his said phone line with N9,000 (Nine Thousand Naira) before travelling. On his return, the Appellant discovered that the Respondent had disconnected his phone line and that of his wife. On 3rd December 2007, the Appellant lodged a complaint at the Respondent’s Regional Office at Enugu. The Appellant claimed that the Respondent’s conduct had caused him to lose all his contacts and had to purchase a new telephone line. The Respondent replied to the Appellant’s letter by explaining that any inactive line for a continuous period of 90 (ninety) days is recovered by the Respondent and that this policy or regulation was not communicated to the Appellant when he contracted with the Respondent and up to the disconnection moment.
The issue that came for determination was:
Whether the Appellant was aware of the terms and conditions in the sealed starter pack?
Before resolving the issue the court spelt out the rules regarding notice in such circumstances, viz:
1) If the person receiving the document did not know that there was writing or printing on it, he is not bound.
2) If he knew that the writing or printing contained or referred to conditions, he is bound.
3) If the party tendering the document did what was reasonably sufficient to give the other party notice of the conditions, then such conditions will be binding and enforceable between the parties.
After analysis, the court held that even though the Appellant did not read the terms, the terms were binding:
“The instruction on the SIM Pack directing the purchaser to see the Terms and Conditions of Purchase contained therein suffices as notice of the terms and conditions of the service agreement regarding the use of the SIM card by the Appellant under the Respondent’s services. The Appellant’s failure to read the terms & conditions of purchase is a matter of personal choice but he is bound those terms and conditions. I am unable to see any reason for disturbing the lower Court’s finding that the appellant was given reasonably sufficient notice of the terms and conditions of purchase of his SIM card in the Service Guide”
With profound respect the justices of the court of Appeal overlooked completely the implication of the above decision. In a country like Nigeria with high rate of illiteracy, citizens are bound to suffer.
The process for subscribing to these services begins with prospective subscriber obtaining a service provider’s Subscriber Identification Module (SIM) pack alone, in the case of mobile phone, or Internet modem and a SIM pack in the case of computer-based mobile Internet services.
Next, the subscriber registers the SIM which presently cannot be used until it is registered. To register the line, the subscriber does not necessarily have to open the SIM pack which usually comes sealed, so long as he or she has information as to the Personal Identification Number (PIN) of the line which may be contained in the receipt issued to him or her on purchase and sometimes on the cover of the pack. It is only after the line has been registered that the consumer can use the SIM card to access the particular subscriber’s network for telephone or Internet service.
Most consumers do not bother to unseal the SIM pack until this time. Generally, the SIM pack contains the SIM card and a leaflet. The subscriber’s PIN which is the phone number and Personal Unlocking Key (PUK) are usually printed on the SIM card carrier. A perusal of the leaflets accompanying the SIM pack of all the service providers currently in the country reveals that they contain mainly instructions on how to activate the line and access services available on the particular network. There is little or no description in the leaflets of the services provided. In fact, they are more like advertising materials than description of the services offered. The consumer is then referred to the website of the service provider for the “terms and conditions” or simply “for more information” and in some cases asked to regularly visit the website for updates on the terms and conditions. In this manner the service providers effectively shifts the obligation to the consumer to chase after the necessary information which by right ought to have been made available freely to him or her.
I will suggest that the justices should review their position whenever an opportunity presents itself
Furthermore, by paragraph 9 of the NCC (Registration of Telephone Subscribers) Regulations, 2011, any subscriber shall be entitled to view his information and to request updates and amendments thereto.
In Andrew v. MTN Nig. Ltd (2016) LPELR-41181(CA), in 2005 the appellant’s telephone became faulty and he removed the sim card pending when he would replace his telephone. When the Appellant replaced his telephone in 2008 he was unable to activate his line. He could not make calls or receive any. The situation was reported to the MTN connect office in Ilorin where he was told that the line had been blocked for not having been in use for long. The Appellant subscribed to another line. He made out that some of his family members and friends had his previous number and were not aware that he had stopped using it.
Sometime in 2009, the Appellant alleged that someone impersonated him using the previous number to demand money and air time from his friends and family members. The Appellant reported the matter to the police upon which a letter was written by the police and said to have been served on the Respondent. The Respondent was requested in the letter to make available information relating to the identity of the person using the Appellant’s old line. The Respondent denied receiving the letter.
He approached the trial Court, prayed amongst other things for an order of the Court compelling the Respondent to release the information required and general damages for the failure of the Respondent to release the required information.
In its judgment the trial Court granted an Order compelling the Respondent to release the information but, did not grant any damages on the ground that the Appellant failed to establish that he suffered any injury that would warrant a grant of general damages. When the Plaintiff appealed, 5 Million Naira was awarded to him.
3.2 Right to Quality Service
Part VII of the NCA (sections 104 to 106) provides for consumer protection and quality of services.
NCC has made and published the Quality of Services Regulations 2013 (QSR) to ensure the protection and promotion of the interests of consumers against unfair practices including matters relating to tariffs and charges, the availability and quality of communications services, equipment and facilities; improve and maintain high level service quality, and provide that will help customers make an informed choice of services and service provider. All service providers are required to meet such minimum standards of quality of service as the Commission may from time to time specify and publish.
The QSR stipulates the minimum quality standards for different telecommunications services and the associated measurements, reporting and record keeping tasks of service providers. It is also empowered to direct service providers to compensate subscribers for poor quality of service and to impose fines on offending service providers.
Regrettably, notwithstanding the QSR, poor quality telecommunications services have persisted in the country. Common examples of the poor quality of telecommunications services in the country include sudden loss of audio in the middle of a call, unsuccessful and high rates of call attempts, long delay and non-delivery of text messages, difficulties or inability to get assistance from operators’ customer care or support line, etc. The practice often adopted by the Commission is to impose fines on the operators under the QSR.
It is commendable that over the years courts have been playing tremendous roles in protecting the interest of consumers.
In the case of MTN Nig Ltd v. Amadi (2012) LPELR-21276(CA), Amadi, a legal practitioner, loaded his phone line with N1, 500.00 (One Thousand, Five Hundred Naira) only. MTN unilaterally blocked his phone line from 14th – 18th October, 2005 in breach of her terms and conditions for use of Starter Pack.
The implication is that Amadi was arbitrarily deprived from; calling or receiving calls from his family, clients and forced to pay extra money to public phone vendors and discussed clients private matters in the open; the use of his N1, 500,00 (One Thousand, five Hundred Naira) only, card re-charge on his phone by reason of the blockage of his phone. He filed an action against MTN and the Court awarded 1 Million in his favour.
Also, in MTN Nig Ltd v. Chinedu (2018) LPELR-44621(CA), the MTN line of the Respondent was unlawfully disconnected by the Appellant and same was sold to another subscriber. The Respondent protested by telling the Appellant that line No. 08032711014 is in use and registered, with a credit of over seven hundred and fifty naira in the line.
On the 12th of November, 2012, the Respondent suffered financial loss of three hundred and ninety thousand, eight hundred naira, because his MTN line was cut off by the Appellant and same had been sold to another subscriber who through the MTN Mobile Banking stole the said sum from the Respondent’s Account with First City Monument Bank (FCMB). The Respondent was shocked because he had never registered with MTN for Mobile Banking, nor with FCMB. When he sued, Court awarded 1.5 Million.
The court of Appeal affirmed the awarded and added thus:
“Indeed, that amount of general damages awarded against the Appellant would serve as a deterrent to it. I would have awarded more if I were the learned trial judge. It is an establishment which is expected to be on its toes at all times to render its services to the public based on trust and good services. Failure to fulfil this duty would attract disastrous consequences to its customers, as it did to the Respondent.”
“In these days of use of mobile phones as prime means of communication, disruption of lines and/or lack of use of them due to the negligence of another can cause untold hardship, and loss of trade and customers.”
In MTN Nig. Ltd v. Anene (2018) LPELR-44447(CA), the respondent, who was the plaintiff at the trial High Court of the FCT, was making contributions to a live Radio programme Vision FM 92. 1 Abuja using his phone, when he was cut-off by the appellant. He found that there was no airtime and could not purchase air time on that day to reconnect as it was a Sunday. He realised that it was the appellant that was responsible for his air time losses. He wrote the appellant complaining of this and that the appellant had subjected him to illegal and unholy deductions from his airtime, for caller tunes services which he said he never subscribed to. The appellant wrote to him stating that it had de-activated the caller tunes and refunded him N700 airtime. After a while, the appellant resumed deducting his airtime for caller tunes services when he did not subscribe to it, and notwithstanding the earlier assertion that it had de-activated same. He therefore took out a Writ out of the trial High Court Court awarded 5 Million Naira. Though Court of Appeal reduced it to N400, 000
3.3 Right to Fair Charges and Accurate Billing
Paragraphs 21 – 27 of the Code makes detailed provisions relating to billing, charging, credit and collection practice. Among other things, a licensee shall at all times endeavour to ensure that billing is accurate, timely and verifiable, and that sufficient information shall be on the bill or otherwise readily available to the consumer for verification of the bill without any charge; that upon a bona fide request from a consumer, the licensee shall inform or provide the consumer with timely, accurate and current information about its billing terms and conditions and options relevant to that consumer.
To enable consumers ascertain how much they have been charged for each call or text message, the Commission has made it mandatory for service providers to send End of Operation Notification (EON) to pre-paid consumers to show much they have been charged for every operation. The directive which took effect from 1 November 2012 requires that in the case of calls, the consumer should be provided with the following information: call duration, total cost of call and new account balance; while for text messaging and other services such as multi-media transmission and internet access, the consumer should be informed of the cost of the service and new account balance.
The directive is being fully complied with by the service providers. This is a welcome improvement over what obtained previously in that it enables a consumer to know how much he or she has been charged for an operation but it does not take care of the issue of high tariffs or charges though.
3.4 Right to Privacy and Protection of Personal Information
The Code makes elaborate provisions for privacy, fair use of consumer information and confidentiality. Any licensee that collects information on individual consumers shall adopt and implement a policy regarding the proper collection, use and protection of that information. Such information shall be protected against improper or accidental disclosure and should not be transferred to any party except as may be authorized by the consumer or the Commission, or as otherwise permitted or required by any applicable law or regulation.
To ensure accuracy of individual consumer information collected and stored by service providers, paragraph 38 of the Code provides that licensees collecting, maintaining, using or disclosing individually identifiable consumer information shall take reasonable steps to ensure that the information is accurate, relevant and current for the purposes for which it is to be used. A consumer is entitled to exercise the right to have his or her directory information suppressed or removed.
These provisions ensure that consumers privacy is respected, their personal information protected and that they are not inundated with telemarketing advertisements and scam messages.
Regrettably, in practice, the opposite is the case. Nigerian consumers are daily inundated with telemarketing in the form of unsolicited text messages and voice calls. There is no platform provided by any of the service providers for subscribers to exercise the option whether or not to receive advertisements in the form text messages and calls. This is contrary to the provisions of the Code highlighted above. No guidelines have been issued on the matter, and the Guidelines on Advertisements and Promotions make no provision in this regard; thus, leaving consumers exposed to the inconvenience of daily barrages of unsolicited advertisements in the form text messages and calls.
The Commission should act expeditiously to formulate and put in place guidelines to specifically regulate the practice of telemarketing in the country. The suggested guidelines should regulate all aspects of telemarketing by operators and subscribers and stipulate stiff penalty for non-compliance. Meanwhile, there is no doubt that unsolicited telemarketing as conducted presently in the country whereby the subscribers have no platform to elect whether or not to receive marketing calls or messages, constitutes flagrant violations of the General Consumer Code60 which renders the operators liable to sanctions under the Nigerian Communications (Enforcement Processes, etc.) Regulations 2005.
In Godfrey Nya Eneye v MTN Nigeria Communication Ltd (Unreported) Suit No FCT/HC/CV/545/2015, delivered 2 November 2016 by the Hon. Justice Jude Okeke, High Court of the Federal Capital Territory, Abuja, Mr Eneye, a lawyer, alleged that without his consent, MTN disclosed his mobile phone number to unknown third parties who sent unsolicited text messages to him. This action, he alleged, violated his fundamental right to privacy guaranteed under section 37 of the Nigerian Constitution. He also claimed, on the same facts, that his right of freedom of association under section 40 and right to liberty under section 35 of same Constitution were violated, and asked for an injunction compelling MTN to cease further unauthorised access of his private mobile phone to unknown third parties as well as the resultant unsolicited text messages. He also demanded various damages for the violations of his rights.
Justice Emmanuel Agim, who prepared the lead judgment of the Court of Appeal, held that innumerable text messages sent without the consent of the subscriber was a violation of the subscriber’s fundamental right to privacy of his telephone conversations, correspondence, his person, telephone line and telephone message inbox. Justice Agim held,
“By giving those unknown persons and organisations access to the respondent’s MTN GSM phone number, to send text messages into it, the appellant violated the respondent’s fundamental right to privacy guaranteed by section 37 of the Constitution which includes the right to the privacy of a person’s telephone line.
“The said section 37 of the 1999 Constitution provides that, ‘The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic conversations is hereby guaranteed and protected’.
“The innumerable text messages without his consent at all times is a violation of his fundamental right to the privacy of his telephone conversations, correspondence and his person and telephone line and telephone message inbox.”
In a similar case of Ezugwu Emmanuel Anene v. Airtel Nigeria Ltd, another lawyer, Mr Ezugwu Emmanuel Anene sued Airtel, his service provider, at the FCT High Court in 2015, alleging that countless unsolicited calls and text messages by Airtel and third parties it granted access to his number breached his constitutional right to privacy, among other claims. The trial court awarded the sum of Five Million Naira (5,000,000.00) damages to him for violation of his privacy right.
The case of MTN Nig. Ltd v. Anene (2018) LPELR-44447(CA) is also relevant on this point because MTN subjected Anene to illegal and unholy deductions from his airtime, for caller tunes services which he never subscribed to. MTN also resumed deducting his airtime for caller tunes services when he did not subscribe to it, and notwithstanding the earlier assertion that it had de-activated same. The court was therefore correct in awarding 5 Million Naira in favour of the Plaintiff
4.0 DISPUTE RESOLUTION
In telecommucations jurisprudence, the means of seeking redress are three:
•The telecommunications operator itself
•NCC (or FCCPC) and
4.1 The Telecommunications operator
The Act makes detailed provisions for consumer access to redress. By section 74 of the NCA, an attempt shall first be made by the parties to resolve any dispute between them through negotiation before the involvement of the Commission.
Similar requirements are also normally found in the SIM packs of various telecom operators. If the complaint is not addressed, the consumer can approach the NCC
4.2 Nigerian Communications Commission
The Commission is conferred with powers to resolve disputes between persons who are subject to the Act regarding any matter under the Act or its subsidiary legislation. The Commission may publish guidelines setting out the principles and procedures that it may take into account in resolving disputes or a class of disputes. Subject to the objects of the Act and any guidelines issued by the Commission, it may resolve the dispute in such manner including but not limited to ADR processes and upon such terms and conditions as it may deem fit. In carrying out its dispute resolution functions, the Commission is to be guided by the objective of establishing a sustained dispute resolution process that is fair, just, economical and effective and shall not be bound by technicalities, legal forms or rules of evidence and shall at all times act according to the ethics of justice and the merits of each case.
The Commission is required to establish procedures or guidelines for the making, receipt and handling of complaints of consumers regarding the conduct or operation of licensees and may, at its discretion, institute alternative dispute resolution processes for the resolution of the complaints or disputes provided that the licensee’s dispute resolution procedures shall first have been exhausted by the consumer before presentation of the complaint to the Commission. To this end the Commission has made and published the Dispute Resolution Guidelines (DRG) 2004.
The DRG 2004 is principally intended for small claims involving amounts not exceeding One Million Naira. The procedure is designed to provide a forum for inexpensive, fair, impartial and effective arbitration as a means of resolving consumer related disputes in the telecommunications sector. By applying for arbitration the parties agree to the nondisclosure of the proceedings, award and reasons for the award to any stranger to the proceedings unless it is necessary to do so in order to enforce the award. The procedure is not designed to deal with complicated disputes, which should be dealt with by more formal oral hearing and evidence to ensure their proper resolution. A decision on the applicability of this procedure shall be at the discretion of the Commission. The Commission appoints the arbitrator, and the decision of the arbitrator shall be final and binding on the parties.
The Code also provides for consumer complaints handling. Under the Code it is mandatory for licensees to provide, and from time to time review and update, their consumer complaints handling procedures. Easily understood information about their complaints processes in various media and formats should be made available to consumers, including as may from time to time be specifically directed by the Commission. They are to ensure that consumers can easily identify how a complaint may be lodged, either at a licensee’s premises or using identified forms of telecommunications.
Both Federal and state high courts have concurrent jurisdictions to entertain telecommunications consumer rights suit. By section 138 of the NCA, the federal high court is vested with the jurisdiction to entertain matters in respect of the enforcement of obligations of service providers provided under the NCA or other subsidiary legislations.
By section 172 of the constitution, the jurisdiction of the state High court can be invoked if the basis of the suit is not the enforcement of the obligations of the service providers provided under NCA, but breach of contract between a consumer and a telecom operator. In Njikonye V. MTN Nig. Ltd. (2007) LPELR-8743(CA). In this case the Appellant after acquiring the mobile telecommunication line, he purchased calling credit from the Respondent. He was however allegedly denied full enjoyment of access to the Respondent’s network services of making and receiving calls within the period covered by the consideration given him that is, by the Appellant. The Appellant also alleged that as a result of the interruption, he suffered loss of income and inconveniences.
He sued before the FCT High Court but the suit was dismissed for want of jurisdiction. The court held that by section 138 of the NCA, the Plaintiff should have filed the matter before the Federal High Court.
He appealed to the Court of Appeal and the decision was set aside. The court of Appeal held that the court with requisite jurisdiction in the circumstance of the case was FCT High Court. The Court of Appeal reasoned that the case had basis in contract because MTN breached its term as contained in the SIM pack they gave the appellant.
I think we really have adequate legal and regulatory framework for the protection of consumers in the telecommunications sector in Nigeria. All we need is information and enlightening the public.
About the author
O. G. Chukkol is a final year student, Faculty of Law, ABU, Zaria and may be reached via [email protected] or 08032470318
For knowledge and Justice