NCA slapped with GH¢20,000 cost over appeal

A three-member panel of the Court of Appeal presided over by Justice Senyo Dzamefe has dismissed an appeal filed by National Communications Authority (NCA) over a GH¢20,000 damages awarded against it by the High Court.

On July 22, 2021, the High Court in Accra (General Jurisdiction) presided over by Justice Rebecca Sittie in an Application filed by private Legal practitioner Francis Kwarteng Arthur ordered Ghana Telecommunications Company Limited and Scancom (MTN Ghana Limited) and all network service providers not to release subscribers Mobile Money details to government.

The court in its judgement also awarded a cost of GH¢20,000 each against Kelni GVG and NCA and a further GH¢10,000 against Ghana Telecommunications Company Limited in favour of the plaintiff.

Unhappy with the damages aspect of the judgement, the NCA initiated an appeal to challenge the cost slapped by the High Court.

The NCA argued that the court has no jurisdiction to award the damages and that the damages in itself is too excessive.

But the plaintiff and his lawyers opposed the request and argued that the damages awarded was a step in the right direction.

The panel of the second highest court of the land which also includes Justice Eric Baah and Justice Merley Afua Wood dismissed the appeal and reaffirmed orders made by the High Court.

The court consequently awarded a cost of GH¢20,000 damages to the plaintiff (Respondent) after ruling that the appeal is unmeritorious.

The five Respondents in the matter are Ghana Telecommunications Company Limited, Scancom PLC – MTN-Ghana, Kelni GVG Limited, NCA, and Attorney General respectively.

NCA’s grounds of appeal

On August 12, 2021, the NCA filed a notice of appeal on grounds as follows:

a. That the learned High Court Judge erred in awarding damages against the Appellant in such generic human rights enforcement action in which the Respondent provided no evidence of personal rights violation.

b. That the learned High Court Judge erred in awarding damages against the Appellant when no special or general damages relief was claimed by the Respondent in enforcement of fundamental human rights action.

c. That the damages awarded by the learned High Court Judge against the Appellant and in favour of the Respondent is harsh and excessive.

d. That the Ruling is against the weight of the affidavit evidence.

Unmeritorious, misconception

The Plaintiff (Respondent) through his lawyers led by Dr. Justice Srem-Sai on November 17, 2022, responded to the motion for the appeal and described it as “unmeritorious.”

“My Lords, as it stands, the Applicant’s personal information (and the personal

information of millions of Ghanaians) which have been unlawfully released are

at large, with absolutely no prospect of being retrieved and protected,” Counsel argued.

“It is important to also note that the trial Court’s order that the 4th Respondent file a certificate of compliance with its orders of retrieval and destruction is yet to be complied with.

“The 4th Respondent has mounted a brass neck to the express orders of the trial High Court but found it prudent to spend scarce public resources to pursue an appeal which has no likelihood of success.

“In the light of the above, we pray, respectfully, that these grounds of appeal, too, be dismissed as unmeritorious. The entire appeal is but a misconception of the case itself.”

Background

The High Court in Accra (General Jurisdiction) presided over by Justice Rebecca Sitties has ordered Ghana Telecommunications Company Limited and Stratcom (MTN Ghana Limited) and all network service providers not to release subscribers’ Mobile Money details to government.

A private legal practitioner, Francis Kwarteng Arthur, went to the High Court to challenge the President’s order contained in Executive Instrument (EI) Number 63 and the manner in which the order was being implemented.

Through the EI 63, government through Kelni GVG made a request to the telecommunication networks and service providers to hand over the personal information of all customers and subscribers to the President to conduct contact tracing to control the spread of the deadly COVID-19.

Mr Arthur through his Lawyer Justice Srem Sai sued the Ghana Telecommunications Network (1st, Statcom (MTN) (2nd), Kelni GVG (3rd), the National Communications Authority (4th) and the Attorney General (5th Respondents) for interference and invasion of privacy.

In a 115-paged ruling delivered on July 22, the court ordered the NCA to supervise the clearing of already released data from both electronic and manual systems from today, July 30, 2021.

“It is hereby ordered that 1st and 2nd Respondents and all other telecommunications Network and service providers be and are hereby restrained from providing the President, the Government, 3rd and 4th Respondents their agents, assigns or workmen however described with the details and unhashed details of Applicant’s mobile money and that of all other mobile money subscribers as 3rd Respondent requested in the email correspondence of 27th March 2020 to 1st and 2nd Respondents and Ugochukwu Uzoka of Glomobile Ghana and any other Telecommunication Network and service provider with effect from the date of the ruling.

“It is further ordered that all the mobile money details and unhashed mobile money details of Applicant and that of all other mobile money subscribers which 1st and 2nd Respondents and other Telecommunication Network and service providers have already provided to the President, the Government, 3rd and 4th Respondents or their agents, assigns or workmen however described per the request of 3rd respondent’s communication dated 27th March 2020 be retrieved and cleared from all manual and electronic records of the President, the government, 3rd and 4th Respondents, their agents, assigns or workmen however described under the supervision of 4th Respondent within 14 days from July 30, 2021,” the court-ordered.

“Having established that Applicant’s rights to privacy has been interfered with or violated through the request 3rd Respondent made to Is and 2nd Respondents to provide the unhashed mobile money details of Applicant, he is entitled to the award of damages. This is not an open license for all mobile money users to seek damages for such violation of their rights.

“I award Applicant GH¢20,000 damages each against 3rand 4 Respondents and GH¢10,000 against 1st Respondent,” the judge ordered.