SIM Swap goes wrong: MTN suffers greatly for apathy at the Supreme Court.

The Story

Adapted from the Judgment of Sanusi, JSC:

Takon v. MTN (Nig.) Communications Ltd. [2019] 10 NWLR (Pt. 1679) 23.

Mr. Eche N. Takon (“the Appellant”) was a subscriber with MTN Nigeria Communications Ltd (“MTN” or “the 1st Respondent”). He instructed MTN to swap his SIM number with the SIM number of another person, Sarah Okpokam, (“the 2nd Respondent”). MTN did as instructed. After the conclusion of the transaction, the Appellant lodged a request at the service centre run by an accredited agent of MTN for the reversal of the swap. The agent refused on the ground that the reversal request was impossible. Angrily, the Appellant filed an action in Court for the enforcement of his fundamental rights to privacy as guaranteed under Section 37 of the 1999 Constitution (as amended). MTN was duly served with the court papers but chose to ignore same and also failed to send someone to represent it at the hearing or advance any reason for its failure to attend court to defend the action. MTN continued to absent itself and refused to file any process.

The trial Court entered Judgment against MTN in favour of the Appellant. (This kind of Judgment is known as Judgment in default of appearance). After the Judgment, MTN did not apply for the said Judgment to be set aside within the period stipulated by law for the filing of such application. Much later, MTN filed an application seeking for the Judgment to be set aside. MTN sought extension of time. The reason furnished by MTN’s Counsel was that the particular lawyer assigned to handle the case traveled to attend to his father’s sickness and forgot to hand over the case file to another lawyer in chambers. The trial Court was unmoved and accordingly dismissed MTN’s application.

MTN appealed to the Court of Appeal which allowed the appeal and granted all the reliefs sought by MTN in its application. Piqued by the Judgment of the Court of Appeal, the Appellant appealed to the Supreme Court which allowed the appeal, setting aside the decision of the Court of Appeal and awarded N500,000 cost against MTN.

Supreme Court’s warning and piece of advice

Sanusi, JSC boldly explained without any equivocation:

“It is only fair to say or warn that parties to an action are bound to attend court whenever they are served with process or hearing notice. Even if a counsel handling a party’s case could not attend court sitting, the party should personally attend or send its representative to attend the court and tell it the indisposition of its counsel to be in court and to possibly seek and obtain adjournment. Also, a party should regularly visit or be in contact with its counsel to make sure that his/its case is not abandoned by the counsel. It is trite law that the principle of law that the sins of counsel should not be visited on the litigant does not apply to indolent litigant as the present 1st Respondent appears to be in this circumstance. Thus, from the surrounding circumstance of the instant case, I hold the view that this is not a clear example of a situation that sins of counsel should not be visited on the litigant (i.e., the 1st Respondent). This is so, because the action and behavior of the litigant leaves much to be desired as it all along did not display any seriousness in seeking that the action, which is one of enforcement of fundamental rights, should be handled with all seriousness and diligence for same to be disposed of with minimum delay. Had the Court below duly and dispassionately considered the surrounding circumstances of the case, especially the nonchalant and non-diligent and indifferent attitude of the 1st Respondent in the way its Counsel and also itself handled the matter, it would have found that the principle that sins of counsel should not be visited on the litigant could not avail the 1st Respondent herein.”

It is only advisable that our corporate institutions must devise a means of properly attending to customers’ complaints. More importantly, their internal legal department must find a way to ensure that cases filed against them receive due attention to avoid incidences like the one that played out in the instant case. It is understood that sometimes, the administrative bottlenecks within these corporations (especially ‘the high and mighty’ ones) contribute to the delay. However, the legal department must be empowered to take urgent and necessary steps to protect the interest of the corporation. External counsel must be briefed on time to prevent situation whereby counsel will be seeking to manufacture reasons for undue delays or caught up in forgetfulness (as in the instant case) which the courts have vowed never to condone anymore.

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Featured Image Credit: MTN.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a Legal Practitioner, Consultant, Mediator and Social Entrepreneur. He is the Managing Attorney at Splendour Legal Consultants. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts. Desirous of implementing new legal solutions, he founded Stephen Legal, a firm in the business of providing innovative legal insights and easy solution in this information age. Stephen also serves as a volunteer at Prof. Pat. Utomi’s Centre for Values in Leadership in Lagos, given his passion for capacity building and leadership development.

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