Government-owned network provider, NetOne Cellular (Pvt) Ltd, has approached the High court seeking to compel its business partner, Afrosoft Corporation (Pvt) Ltd to pay over $11 million after the latter allegedly offered SMS services to its customers without NetOne Cellular’s consent.
Summons filed against Afrosoft on June 29, 2018 and the latter is yet to defend the litigation.
According to NetOne, on March 31, 2009, it entered into a Memorandum of Understanding (MOU) with Afrosoft, known as “Technology Co-operation Engagement”, the terms of which involved the development, integration, promotion and joint mutual benefit.
NetOne said Afrosoft later started offering SMS services to its customers without an agreement on the said provision having been signed by the parties.
“Despite that there was no agreement on this provision defendant (Afrosoft) continued using plaintiff’s (NetOne) system of offering services to customers at the detriment of the plaintiff. Plaintiff only discovered the same in January 2018 when they carried out a system audit,” NetOne said in its declaration.
“Between June 1, 2015 and January 31, 2018 the defendant did send various SMS’ to its various customers. The total number of SMS’ sent was 203 775 129. Had the defendant had an agreement with the plaintiff they would have been charged a service fee of $0. 055/SMS including value Added Tax (VAT) being the approved tariff from the Postal Telecommunications Regulatory Authority.”
NetOne further said the total costs of SMS’s sent by Afrosoft amounted to $11 207 632, if calculations were to be made using the service fee of $0.055/SMS which is a standard fee.
“It would be unjust enrichment for the defendant not to pay for the service they enjoyed. At law, the defendant cannot be unjustly enriched and therefore should compensate the plaintiff for use of SMS platform without paying for the same,” NetOne said adding; “Or alternatively the defendant by using the SMS platform they tacitly entered into a contract with the plaintiff and therefore they are bound by the plaintiff’s terms and conditions that applies to its customers who send SMS’.”
NetOne further said it had tried to engage Afrosoft (Pvt) Ltd to resolve the matter amicably but the latter had refused, failed or neglected to pay the amount leading to the current litigation.