Mobile Phone Provider and National Communications Authority sued

A class action has been taken against Scancom Ghana Limited, operators of the nation’s biggest mobile phone network, Areeba, for violating relevant provisions of the National Communications Authority (NCA) Act and regulations for high quality service.
The action comes in the wake of two legal suits initiated by two shareholders over their interests in the company following its merger with South African giants MTN.
Also joined to the latest suit is the NCA, for failing or neglecting to carry out its regulatory responsibility that Areeba provides high quality telephone services for its customers.
The action was filed by the Centre for Public Interest Law, a non-profit public interest and human rights organisation, and its Executive Director, Dr Dominic Ayine, on February 13, 2007 on behalf of similarly situated customers.
The plaintiffs have accused Areeba of breach of contract and are seeking general and punitive damages against it, as well as an order for restitution of all money found to have been unjustly collected and received by the company as a consequence of its acts and omissions.
According to them, the deliberate refusal of Areeba to open its system up for easy inter-connectivity with other networks in Ghana amounts to unfair competition, contrary to the NCA Act and the Protection Against Unfair Competition Act.
They are also seeking an order of perpetual injunction to restrain Scancom Ltd, its agent or assigns from engaging in the conduct which was the subject matter of the suit.
Similarly, the plaintiffs are seeking an order of mandatory injunction to compel the NCA to enforce Scancom’s obligation under its licence to expand its network capacity and coverage and improve its service quality, as well as its inter-connectivity agreements with other cellular networks.
In their statement of claim, the plaintiffs stated that Scancom Ltd was registered and licensed by the NCA to provide mobile phone services, saying figures in the public domain indicated that Areeba was the market leader in the provision of mobile or cellular phone services, with more than 2.5 million subscribers quoted on the website of the NCA.
The NCA, they said, was the statutory agency responsible for the regulation of providers of communication services, including, but not limited to, the operations of companies, enterprises and individuals which provided fixed and mobile telecommunication services.
The NCA’s mandate is derived from the NCA Act, 1996 (Act 524) which established the authority.
According to the plaintiffs, their action was on behalf of similarly situated persons and all those who resided in Ghana and obtained telecommunication services from Areeba and who had been adversely affected and suffered material injury or financial loss and infringement of their rights as a result of the said acts and omissions.
They said Areeba’s services were of two plans to individuals and business customers, namely, the “Pay-As-You-Talk” (prepaid) service plan, which was used with GSM 900 compatible cellular phones, and the “Pay Monthly” (post-paid) service plan, both of which were offered directly to customers or through designated agents.
The plaintiffs stated that at all material times Scancom Ltd had failed or neglected to provide good quality cellular service to them in that they had almost always encountered network congestion, frequent call dropping, unusual background noise preventing clarity in telephone conversation, inter-connectivity problems with other networks, among other problems.
They stated that they were daily confronted with and frustrated by Areeba’s network congestion problems, such that they had to dial approximately between five and 10 times before achieving connectivity and very often every failed dial attempt was met with the automated response, “The Areeba number you have dialled cannot be reached at this moment. The mobile equipment is either switched off or out of coverage area.”
According to them, that automated response was materially false and misleading, since Areeba prided itself as having nation-wide coverage, and also portrayed the customers as being responsible for failed attempts to put through calls (for example switching off their mobile phones ), instead of placing the responsibility on Areeba.
They maintained that the representation that the mobile equipment was either switched off or out of coverage area was not only false but also wilful, since Areeba knew or ought to know that it was false at the material time it was made.
As a consequence of the material facts stated, the plaintiffs said Areeba’s prepaid customers in particular lost their telephone credit (or units), because of network congestion, on the expiry date, thereby unjustly enriching Areeba, since more units had to be bought after that.
According to the plaintiffs, they had suffered and continued to suffer financial loss as a consequence of the frequent call dropping resulting from network congestion and system downtimes.
“This is due to the fact that when calls drop in the middle of a conversation, the plaintiffs have to call again, and in doing so they have to pay higher call rates per minute than would have been the case without the call dropping,” they said.
The plaintiffs said Areeba had deliberately and purposefully engaged in acts, methods and practices which had frequently frustrated them in putting through calls to other cellular networks or being called by users of the services of those networks.