When is a contract said to exist between a subscriber/consumer and a service provider?

As soon as a subscriber acquires and activates his SIM (Subscriber Identity Module), a contract is consummated with the service provider, provided the subscriber also registers his SIM in line with the directives of the Commission.

Thus, where A buys and activates an MTN SIM, as long as A recharges his MTN line in compliance with the pay-as-you-go system, a contract subsists between A and MTN and such contract only lapses at the end of A’s access period on MTN’s network, which varies from one service provider to another but is usually within a period of 6 months. Whenever A recharges his account with MTN again, such contract is automatically revived.

However, where A fails to recharge before MTN’s validity period, A is deemed to have repudiated the contract and MTN is most likely to ‘block’ the SIM (which must not be confused with the same SIM block during SIM retrieval in cases of theft or robbery) when the subscriber is usually given same phone number . Where the former happens, A then has two options: either he abandons MTN and takes a new SIM from 9Mobile or visits MTN’s Customer Care to get the issue resolved. But while the contract exists between A and MTN, A is entitled to all the privileges and rights conferred by the service agreements.

Steps Towards Redress:

Sections 4(p) of the Nigerian Communications Act, 2003 (‘the 2003 Act’) provides as follows: “The Commission shall have powers in examining and resolving complaints and objections filed by and disputes between licensed 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.” This section clearly shows that the dispute resolution mechanisms which the Commission is empowered to use is to resolve disputes between licensed operators, subscribers or any other person involved in the communications industry.

Section 73 of the 2003 Act also provides: “The Commission shall have powers to resolve disputes between persons who are subject to this Act (the parties) regarding any matter under this Act or its subsidiary legislation.

Section 74 of the 2003 Act further provides that before resort to the Commission under Section 73, “an attempt shall first be made by the parties to resolve any dispute between them through negotiation before the involvement of the Commission.” The 2003 Act further provides under Section105(1) that the Commission may use its powers in the resolution of consumer complaints in relation to customer service and the QoS, upon the condition that the licensee’s dispute resolution procedures must have been exhausted first before the consumer applies the Commission’s resolution process. This simply means that the aggrieved customer and the telecoms service providers must meet to resolve any complaints before the Commission can get involved. There is then a mandatory administrative remedy which must be exhausted first whenever there is a dispute arising from the operation of the 2003 Act between parties before any of the parties can approach a court of law for remedy.

Under Sections 4(p), 73 and 74 of the 2003 Act, the Nigerian Communications Commission is charged with the duty of resolving disputes between parties and the parties must have attempted to resolve their dispute through negotiation before approaching the Commission.

Section 75 of the 2003 Act further gives an aggrieved party the privilege of approaching the Commission for redress.

Thus, an aggrieved party seeking redress must avail himself of the full compliments of the provisions of the  2003 Act in addressing his grievances against the Network Service Provider/Telco before commencing action.

See the case of ABUBAKAR v NASAMU (2012) 17 NWLR (Pt. 1330) 546 where it was held that where a statute has prescribed the mode of performing an act, only that mode must be followed otherwise the act will be a nullity.

See also ADEOLA v AYEOBA (2009) All FWLR (Pt. 458) 365 where it was held that a party must first exhaust a line of action provided by a statute for the determination of an issue before going to court, otherwise the suit will be in contravention of a condition precedent and therefore incompetent.

Note that the provisions of Sections 4(p) and 73 of the Act do not oust the jurisdiction of the Court, but merely create conditions precedent to the invocation of such jurisdiction by providing that parties must first exhaust the statutory dispute resolution mechanisms provided in the Act before approaching the Court.

It is trite law is that where a statute has stipulated internal mechanisms for seeking redress, those mechanisms must first be exhausted before approaching the Court. Where those mechanisms are not exhausted before approaching the court, the action becomes pre-mature and incompetent thereby depriving the court the jurisdiction to entertain it.

Jurisdiction of Courts in Telecoms Issues:

Section 138 of the 2003 Act confers exclusive jurisdiction over all matters, suits and cases arising out of, or consequent upon the Act, on the Federal High Court, FHC. But did you know that the FHC jurisdiction does not extend to cases of breach of contract and negligence?

 The exclusive jurisdiction of the Federal High Court provided under Section 251 of the 1999 Constitution is to the effect that it does not extend to cases of simple contracts arising from customer business relations or damages for negligence and breach of contract. Therefore, the pre-paid and post-paid lines are contractual in nature which the High Court has the jurisdiction to entertain. Thus, where any telecoms service provider has negligently breached a contract with a subscriber, the High Court has the jurisdiction to hear and determine the suit as constituted.

For more enquiries on this subject or any Telecommunications-related matters, please call us on 08033852360 or send an email to enquiry@harlemsolicitors.com

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