AELEX Litigation notes

AELEX NOTES

AELEX is committed to protecting business interests by providing robust legal counsel to corporations facing complex challenges. In this edition of AELEX Litigation Notes, we share below some recent judicial pronouncements on notable commercial issues.

1. FUNDAMENTAL HUMAN RIGHTS ENFORCEMENT:
ON WHETHER SENDING TEXT MESSAGES ON PRODUCTS AND SERVICES OF A BANK AMOUNTS TO AN INFRINGEMENT OF THE RIGHT TO PRIVACY – SUIT NO: FHC/L/CS/2488/22 – UDEGBE CHIBUZO IFEOMA v. UNITED BANK FOR AFRICA

On 15th May 2024, the Federal High Court, Lagos Division per Digmba J. delivered the judgment in Suit No: FHC/L/CS/2488/22 – Udegbe Chibuzo Ifeoma v. United Bank for Africa. We are delighted to announce that we acted for the successful Respondent, United Bank for Africa.

This is an important judgment on the fundamental right to privacy and the extent to which the receipt of unsolicited text messages from another party amounts to a breach of privacy. It emphasises key elements required to establish a breach of privacy including the distribution of personal data to a third party, and the absence of consent of the data subject. The decision also explores the concept of “processing” of personal data and the range of activities that qualify as such under the Nigeria Data Protection Regulations (NDPR) 2019. It clarifies that a Bank acting on information provided by its customer would not be regarded as processing another individual’s personal data, as to amount to a breach of that individual’s data privacy rights.

The Applicant claimed that the Respondent had breached her fundamental right to privacy, dignity of her person and data privacy rights guaranteed under Sections 37, 34, and 46 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Articles 4 and 5 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, by sending unsolicited text messages regarding its products and services to her telephone number. The Applicant sought, amongst other reliefs, a declaration that the act of harvesting her personal data without lawful basis and sending her unsolicited messages is a violation of her right to privacy, and for this, she asked that the Court perpetually injunct the Respondent and award general and exemplary damages against the Respondent.

The Respondent’s defence was that the phone number of the Applicant had been provided by the Applicant’s elder sister while opening an account with the Respondent, which had led the Respondent to send the messages to the said mobile number.

The court (per Dimgba J.) dismissed the Applicant’s entire claim for lack of merit.

A few key points from the judgment are as follows:

• Considering the dicta in Emerging Markets Telecommunications Services Ltd v. Eneye (2018) LPELR-46193 (CA) and MTN Nigeria Communications Ltd v. Eneye (Appeal No: CA/A/689/2013 (Unreported), the mere sending and receiving of text messages without solicitation is not enough to ground an action for unconstitutional breach of privacy. A breach of the right to privacy must be predicated upon a prior unauthorised disclosure of the personal phone number of the subscriber to the third party (a product marketer in the cases cited) who begins to send unsolicited messages.
• The Applicant’s phone number had been voluntarily given to the Respondent by the Applicant’s elder sister whose banking information and transactions were sent to the phone number. The right to complain inhered in the Applicant’s sister but was not exercisable due to the principle of volenti non fit injuria.
• The Respondent acted timeously in resolving the Applicant’s formal complaint by promptly ceasing sending text messages to the Applicant’s phone number. The Respondent was, therefore, not liable for a breach of the Applicant’s right to privacy.
• Considering the definition of “processing” in Regulation 1.3(xxi) of the Nigerian Data Protection Regulations (NDPR), the Respondent did not process the Applicant’s personal data as it only acted on information provided by one of its customers – the Applicant’s elder sister.

The decision of the court aligned with the arguments canvassed by the Respondent’s counsel, Emmanuel Abraye, a Senior Associate within the Disputes Resolution Practice Group at ǼLEX.

2. A FOREIGN JURISDICTION CLAUSE IN A CONTRACT IS NOT AN OUSTER CLAUSE.

ǼLEX represented the successful Respondent, Systems Applications Products Nigeria Ltd (“SAP”), in an appeal commenced by the Appellant in Appeal No. CA/LAG/CV/854/2022 – Sqimnga Nigeria Limited v. Systems Applications Nigeria Limited.

The Appellant, as claimant, had commenced action at the High Court of Lagos State alleging breach of the Master Services Agreement (MSA) against the Respondent. AELEX filed a Notice of Preliminary Objection (“the preliminary objection”) on the basis that parties in the MSA agreed to refer disputes arising from the contract to the South African courts. The High Court upheld AELEX’s preliminary objection and referred parties to their chosen dispute forum. Aggrieved by the decision of the High Court, the Claimant (“the Appellant”) appealed to the Court of Appeal.

The Appellant contended, amongst others, that the High Court was wrong to have declined jurisdiction and referred the parties to South Africa because the parties to the action were Nigerian entities, and the contract was performed in Nigeria. In response, AELEX, on behalf of the Respondent, contended that the parties to the action willingly entered into the MSA and were aware that the Nigerian courts had jurisdiction at the time of entering the contract but chose to have their disputes resolved in South Africa. AELEX, therefore urged the Court to hold the parties bound to their contract.

After a thorough consideration of the issues and contentions of the parties, the Court of Appeal, in a unanimous judgment delivered on 26 March 2024, held that parties are bound by their agreement which are neither contrary to the law nor fraudulently entered. The Court of Appeal further held that a foreign jurisdiction clause is not an ouster clause and dismissed the appeal of the Appellant with costs in favour of SAP.

This decision is significant because it reiterates the settled principle of law in Nigeria that contracting parties’ are entitled to choose the forum and law to govern their contracts.

Mr. Adedapo Tunde-Olowu, SAN and Linda Ezenyimulu represented the Respondent.

3. THE EXERCISE OF BUSINESS DISCRETION DOES NOT AMOUNT TO DISCRIMINATION.

AELEX is pleased to have represented the successful defendants; Pressure Control Systems Nigeria Ltd (PSCNL) and Baker Hughes (BH) in a suit instituted by a former employee in Suit No: NICN/LA/405/2019-Adebisi Arike Shonekan v. Pressure Control Systems Nigeria Ltd & Baker Hughes, A GE Company.

The Claimant alleged that the 1st Defendant is a subsidiary of the 2nd Defendant and that the discrepancies between the redundancy policy of the two entities constitute discriminatory labour practice in the workplace and are not in accordance with global best practices.

The Claimant further alleged that the discretionary payment of gratuity as part of redundancy benefits is an admission of discrimination by the Defendants, and that her redundancy benefits were wrongfully computed.

On behalf of the Defendants, ǼLEX challenged the entirety of the Claimant’s case on the grounds that the allegations of discrimination remain unproven and that an employer has the right to exercise discretions in the operation of the business.

In its well-considered judgment delivered on 22 April 2024, the NICN, per Hon. Justice (Prof) Elizabeth Oji, the Court upheld the defence and found that to determine discrimination, a Claimant must be able to show that the conduct complained of was applied differently against or in favour of another employee or that the business discretion was applied in a discriminatory manner. In the absence of proof, the Court held that the claims against the Defendant failed, and the suit was dismissed.

This case is significant as it preserves the right of employers to exercise business discretions. Furthermore, an adverse judgment would have led to a floodgate of claims and compelled companies with global operations to unify company policies.

Oluwaseun Philip-Idiok and Linda Ezenyimulu represented the Defendants.

With a proven track-record in contract disputes, data privacy, and discrimination cases, we have consistently protected our clients’ assets, reputations, and overall business interests. Our dedicated team is committed to delivering exceptional results and building enduring client relationships.

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