Afrigather AELEX NOTES
AELEX is dedicated to defending enterprise pursuits by offering strong authorized counsel to firms dealing with advanced challenges. On this version of AELEX Litigation Notes, we share beneath some current judicial pronouncements on notable business points.
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 fifteenth Could 2024, the Federal Excessive Court docket, Lagos Division per Digmba J. delivered the judgment in Go well with No: FHC/L/CS/2488/22 – Udegbe Chibuzo Ifeoma v. United Financial institution for Africa. We’re delighted to announce that we acted for the profitable Respondent, United Financial institution for Africa.
This is a crucial judgment on the basic proper to privateness and the extent to which the receipt of unsolicited textual content messages from one other social gathering quantities to a breach of privateness. It emphasises key components required to determine a breach of privateness together with the distribution of private knowledge to a 3rd social gathering, and the absence of consent of the info topic. The choice additionally explores the idea of “processing” of private knowledge and the vary of actions that qualify as such underneath the Nigeria Information Safety Rules (NDPR) 2019. It clarifies {that a} Financial institution performing on info supplied by its buyer wouldn’t be considered processing one other particular person’s private knowledge, as to quantity to a breach of that particular person’s knowledge privateness rights.
The Applicant claimed that the Respondent had breached her elementary proper to privateness, dignity of her particular person and knowledge privateness rights assured underneath Sections 37, 34, and 46 of the Structure of the Federal Republic of Nigeria, 1999 (As Amended) and Articles 4 and 5 of the African Constitution on Human and Peoples Rights (Ratification and Enforcement) Act, by sending unsolicited textual content messages concerning its services and products to her phone quantity. The Applicant sought, amongst different reliefs, a declaration that the act of harvesting her private knowledge with out lawful foundation and sending her unsolicited messages is a violation of her proper to privateness, and for this, she requested that the Court docket perpetually injunct the Respondent and award basic and exemplary damages in opposition to the Respondent.
The Respondent’s defence was that the cellphone variety of the Applicant had been supplied by the Applicant’s elder sister whereas opening an account with the Respondent, which had led the Respondent to ship the messages to the mentioned cell quantity.
The court docket (per Dimgba J.) dismissed the Applicant’s whole declare for lack of benefit.
A couple of key factors from the judgment are as follows:
- Contemplating the dicta in Rising Markets Telecommunications Companies Ltd v. Eneye (2018) LPELR-46193 (CA) and MTN Nigeria Communications Ltd v. Eneye (Enchantment No: CA/A/689/2013 (Unreported), the mere sending and receiving of textual content messages with out solicitation is just not sufficient to floor an motion for unconstitutional breach of privateness. A breach of the precise to privateness have to be predicated upon a previous unauthorised disclosure of the non-public cellphone variety of the subscriber to the third social gathering (a product marketer within the circumstances cited) who begins to ship unsolicited messages.
- The Applicant’s cellphone quantity had been voluntarily given to the Respondent by the Applicant’s elder sister whose banking info and transactions have been despatched to the cellphone quantity. The correct to complain inhered within the Applicant’s sister however was not exercisable as a result of precept of volenti non match injuria.
- The Respondent acted timeously in resolving the Applicant’s formal grievance by promptly ceasing sending textual content messages to the Applicant’s cellphone quantity. The Respondent was, subsequently, not responsible for a breach of the Applicant’s proper to privateness.
- Contemplating the definition of “processing” in Regulation 1.3(xxi) of the Nigerian Information Safety Rules (NDPR), the Respondent didn’t course of the Applicant’s private knowledge because it solely acted on info supplied by one in every of its clients – the Applicant’s elder sister.
The choice of the court docket aligned with the arguments canvassed by the Respondent’s counsel, Emmanuel Abraye, a Senior Affiliate throughout the Disputes Decision Follow Group at ǼLEX.
2. A FOREIGN JURISDICTION CLAUSE IN A CONTRACT IS NOT AN OUSTER CLAUSE.
ǼLEX represented the profitable Respondent, Programs Functions Merchandise Nigeria Ltd (“SAP”), in an attraction commenced by the Appellant in Enchantment No. CA/LAG/CV/854/2022 – Sqimnga Nigeria Restricted v. Programs Functions Nigeria Restricted.
The Appellant, as claimant, had commenced motion on the Excessive Court docket of Lagos State alleging breach of the Grasp Companies Settlement (MSA) in opposition to the Respondent. AELEX filed a Discover of Preliminary Objection (“the preliminary objection”) on the idea that events within the MSA agreed to refer disputes arising from the contract to the South African courts. The Excessive Court docket upheld AELEX’s preliminary objection and referred events to their chosen dispute discussion board. Aggrieved by the choice of the Excessive Court docket, the Claimant (“the Appellant”) appealed to the Court docket of Enchantment.
The Appellant contended, amongst others, that the Excessive Court docket was flawed to have declined jurisdiction and referred the events to South Africa as a result of the events to the motion have been Nigerian entities, and the contract was carried out in Nigeria. In response, AELEX, on behalf of the Respondent, contended that the events to the motion willingly entered into the MSA and have been conscious that the Nigerian courts had jurisdiction on the time of coming into the contract however selected to have their disputes resolved in South Africa. AELEX, subsequently urged the Court docket to carry the events certain to their contract.
After a radical consideration of the problems and contentions of the events, the Court docket of Enchantment, in a unanimous judgment delivered on 26 March 2024, held that events are certain by their settlement that are neither opposite to the legislation nor fraudulently entered. The Court docket of Enchantment additional held {that a} overseas jurisdiction clause is just not an ouster clause and dismissed the attraction of the Appellant with prices in favour of SAP.
This choice is important as a result of it reiterates the settled precept of legislation in Nigeria that contracting events’ are entitled to decide on the discussion board and legislation to control 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 happy to have represented the profitable defendants; Stress Management Programs Nigeria Ltd (PSCNL) and Baker Hughes (BH) in a swimsuit instituted by a former worker in Go well with No: NICN/LA/405/2019-Adebisi Arike Shonekan v. Stress Management Programs Nigeria Ltd & Baker Hughes, A GE Firm.
The Claimant alleged that the first Defendant is a subsidiary of the 2nd Defendant and that the discrepancies between the redundancy coverage of the 2 entities represent discriminatory labour follow within the office and will not be in accordance with international finest practices.
The Claimant additional alleged that the discretionary fee of gratuity as a part of redundancy advantages is an admission of discrimination by the Defendants, and that her redundancy advantages have been wrongfully computed.
On behalf of the Defendants, ǼLEX challenged the whole lot of the Claimant’s case on the grounds that the allegations of discrimination stay unproven and that an employer has the precise to train discretions within the operation of the enterprise.
In its well-considered judgment delivered on 22 April 2024, the NICN, per Hon. Justice (Prof) Elizabeth Oji, the Court docket upheld the defence and located that to find out discrimination, a Claimant should be capable to present that the conduct complained of was utilized otherwise in opposition to or in favour of one other worker or that the enterprise discretion was utilized in a discriminatory method. Within the absence of proof, the Court docket held that the claims in opposition to the Defendant failed, and the swimsuit was dismissed.
This case is important because it preserves the precise of employers to train enterprise discretions. Moreover, an hostile judgment would have led to a floodgate of claims and compelled firms with international operations to unify firm insurance policies.
Oluwaseun Philip-Idiok and Linda Ezenyimulu represented the Defendants.
With a confirmed track-record in contract disputes, knowledge privateness, and discrimination circumstances, we’ve got persistently protected our shoppers’ belongings, reputations, and general enterprise pursuits. Our devoted staff is dedicated to delivering distinctive outcomes and constructing enduring shopper relationships.
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