Wednesday, 7 November 2018

A GREAT DAY FOR ATM USERS IN NIGERIA


In February, 2016, a customer of FCMB Ltd tried to withdraw the sum of N8,000 from the ATM of UBA Plc. The ATM dispensed cash but before he could take it, the cash was retracted, nevertheless N8,000 was deducted from his account with FCMB Ltd. Efforts by the customer to get a refund of the N8,000 failed, as UBA insisted that the ATM paid him. The customer thereafter sued both banks for breach of contract and negligence.

In the case: Barr. Timothy Tion v FCMB Ltd and UBA Plc (MHC/161/16), filed at the Benue State High Court on Friday 13th May, 2016, the Plaintiff (customer) asked the court for the following reliefs:
(i)                        A declaration that the debit of the Plaintiff’s account to the tune of N8,000.00 only (Eight Thousand Naira) even as he got no value for the transaction amounts to a breach of contract by the Defendant’s jointly and severally.
(ii)                    A declaration that the debit of the Plaintiff’s account to the tune of N8,000.00 only (Eight Thousand Naira) when he got no value for the transaction amounts to negligence by the Defendant’s jointly and severally.
(iii)                 An order directing the Defendants jointly and severally to forthwith refund the sum of N8, 000.00 only (Eight Thousand Naira) debited from the Plaintiff’s account in spite of the fact that the ATM which the Plaintiff carried out the transaction partially dispensed cash but retracted the cash before the Plaintiff could take it.
(iv)                  An order awarding to the Plaintiff against the Defendants jointly and severally damages of N10, 000.00 (Ten Million Naira) for the untold hardship and inconveniences suffered by the Plaintiff as a result of the unlawful conduct of the Defendants.
(v)                      10% Per Annum as allowed by the High Court of Benue State (Civil Procedure) Rules 2007 on the entire judgement sum from the date of judgement till the entire judgement sum is finally liquidated.

UBA in rejecting the Plaintiff’s claim tendered in evidence ATM Electronic Journal Logs, ATM Camera Snapshots, CCTV Footage and Snapshots whereas FCMB did not tender any evidence in disproving the Plaintiff’s claim but only argued that they acted on a debit alert sent to them via Interswitch network by UBA to deduct N8,000 from the Plaintiff’s account and that they have they have their own ATMs yet the Plaintiff chose to use that of UBA.

In entering judgement for the Plaintiff the court found that UBA failed to show that the ATM paid to the Plaintiff the amount he set out to withdraw. The court also found FCMB liable for breach of contract and negligence for acting on the debit alert from UBA without ensuring that Plaintiff was actually paid. The court equally found UBA negligent for causing the Plaintiff’s account to be debited, even when the ATM failed to pay him the cash he had requested to withdraw.

According to His Lordship Justice S. O. Itodo who delivered judgement in the case on September 26, 2018:
“There is no doubt, that between the plaintiff and the 1st defendant, a Banker/customer relationship exists by a contract. The plaintiff’s case that he was not paid was not disputed by the 1st defendant which contend that it took steps to unravel the issue and resolve same, and that the debit of the plaintiff's account was caused by the 2nd defendant. Granted that the 1st defendant was not directly responsible for the deduction of the plaintiff's account but that it acted on a signal or alert from a third party which is the 2nd defendant, what step did the 1st defendant take to ascertain the genuineness of the alert from the 2nd defendant. In other words, did the 1st defendant verify the alert sent to it before deducting or debiting the plaintiff’s account? There is no evidence by the 1st defendant of the steps it took (if any) to ensure that the plaintiff was paid the sum of money he set out to withdraw other than the electronic message it received before debiting the account. It is not its case, that this electronic message was fool proof and admit of no error or that there could not be mechanical failure in its operation.
His Lordship also stated that:
“The 2nd defendant’s witness in his oral testimony did not adduce evidence showing which of the exhibits identified the plaintiff, which of them showing the transaction, and which of them which show the payment of the money to the plaintiff. The court not being a party to the dispute cannot be expected to do that for the defendant. Even though the court may not do so but nonetheless did, that exercise did not show, and therefore disprove the plaintiff's assertion that he was not paid. In any case the 2nd defendant is mindful that the ATM operation may not in all cases be without controversy and dispute such as there is in the present case, hence it went the extra mile to install cameras whose photographs are exhibits tendered by it. However as has been demonstrated, the pictures have not shown that the plaintiff was paid the money he went out to withdraw. In the circumstance, the 2nd defendant, just like the 1st defendant, cannot say that it was not negligent in ensuring that the plaintiff was paid, as a duty of care was created by virtue of the 2nd defendant displaying and making its ATM available to the banking public and not only its customers.”
In conclusion His Lordship held that:
“…the plaintiff established and proved his case that the defendants were negligent in not ensuring that he was paid before deducting or debiting his account. Consequently Judgment is entered in his favour in terms of reliefs 46(1)(ii) (iii) and (v) while a further sum of Five Hundred Thousand Naira (N500,000.00) is awarded for the hardship and inconveniences suffered by him.”
This decision, unlike the one in Kume Bridget Ashiemar v. GT Bank Plc and UBA Plc, is a welcome relief to many bank customers in Nigeria who have experienced ATM dispense errors and failed to get a refund. It also demonstrates that customers can sue banks in such cases and get justice. The decision should therefore serve as a source of courage to bank customers in Nigeria who wish to sue errant banks.  Until the banks are sued and decisions given against them, the sole efforts of their regulator, the Central Bank of Nigeria, in ensuring that they serve their customers better may not be enough.

Sunday, 29 July 2018

THE TAKING OF WITNESS EVIDENCE THROUGH VIDEO CONFERENCING UNDER NIGERIAN LAW




INTRODUCTION
Technological developments in the field of information and communication technology (ICT) have brought a turning point in the history of human civilization. It has brought about numerous changes and innovations in all fields of human activity. It has resulted in enhanced efficiency, productivity and quality of output in every walk of life. There is an immediate need for exposing the judiciary to the numerous benefits of utilising ICT in judicial administration, to enable the Judiciary fulfil its constitutional role of justice delivery to all without fear, favour or discrimination.

VIDEO CONFERENCING
“Videoconferencing is the holding of a conference among people at remote locations by means of transmitted audio and video signals. Through these conferences, individuals meet one another in a real-time virtual manner as if they were in the same room without the hassle and expense of traveling.  While slight limitations remain depending on the quality of the equipment employed by courts, the general facial and physical expressions communicated by witnesses are rarely inhibited by the use of such technology.”
Video Conferencing (VC) enables any person who has an interest in court proceedings to be involved in a hearing from a remote location. In its simplest form, a witness at a remote location may give his/her evidence via a video link to the court with one screen and one camera in the courtroom.

The technology needed to establish a video link is relatively simple. A screen and a camera with a microphone are required at each location. Any form of screen can be used. Also using the popular video chatting application; Skype, a witness in remote location can testify in a trial. All that may be required at the his end would be an Internet enabled smartphone or laptop computer and in the courtroom an Internet enabled laptop computer and perhaps a projector to project the visuals and a sound system to amplify the audio to the hearing of all in the court room.

VC remains a viable method to obtain testimony as a witness’s presence at trial may be hindered by geographical impediments, fears associated with testifying in person, or even lack of security at the trial site. Through videoconferencing, unavailable witnesses can be transmitted into courtrooms, thus eradicating the limitations on testimonies of encumbered individuals as well as individuals located worldwide.

LEGAL AND POLICY FRAMEWORK FOR USE OF VIDEO CONFERENCING IN TAKING WITNESS TESTIMONY
The primary legal framework for the use of VC in taking witness testimony is section 125 of the Evidence Act, 2011 which provides that all facts, except the contents of documents, may be proved by oral evidence.  Oral evidence simply put is the verbal assertion or written statement on oath of a witness offered as proof of a fact or facts in issue at a trial. Therefore, by the above provision it is submitted that a witness who testifies through video conferencing is doing so orally and that would suffice as there is no requirement in the Evidence Act that a witness must be physically present in court to give evidence provided the court can observe his demeanour while testifying through VC.

Also section 234(3) of the Administration of Criminal Justice Act, 2015 provides that where in any proceedings the court determines it is necessary to protect the identity of the victim or a witness the court may receive evidence by video link.

Although under the National Industrial Court (NIC) Rules, 2017 there is no express provision for use of video conferencing in taking witness testimony, Order 3 of the Rules state that the Court may direct a departure from these Rules where the interest of justice so requires.

Furthermore, Order 6(2)(a) and (b) provides that in any proceeding pending before NIC, the Court may as a specialized Court regulate its procedure and proceedings as it thinks fit in the interest of justice and fair play and in appropriate  circumstances,  depart  from  the  Evidence Act  as provided in section 12 (2) (b) of the National Industrial Court Act, 2006 in the interest of justice, fairness, equity and fair-play.

Order 6(3) stipulates that in any proceeding before the NIC, the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it.

By Order 9(1) where a matter arises for which no provisions or adequate provisions are made in NIC Rules, the Court may adopt and apply any procedure as will in its view do substantial justice to any of the parties concerned in the matter. Under this particular provision, even though video conferencing may not have been provided by the rules of the NIC, the Court may nevertheless allow use of video conferencing where doing so may do substantial justice to any of the parties.

Again, Order 9(2) further provides that the NIC Rules are to be applied by the Court as it considers fit and the Court may depart from the rules of evidence in the interest of justice as provided in Section 12(2)(b) of the National Industrial Court Act, 2006.

In view of the above provisions, it is submitted that a witness in a trial or proceeding at the NIC, may be allowed to offer his testimony through video conferencing in the interest of justice, fairness, equity and fair-play. The NIC in such a circumstance will not be beclouded by technicalities but will only consider whether using video conferencing may do justice to the parties in the case before it.

In 2012, the then Chief Justice of the Nigeria, Justice Dahiru Musdapher, launched the Nigerian Judiciary Information Technology Policy (JITPOat the National Judicial Council Complex in Abuja. He stated that that implementing the policy will assist the judiciary to meet the changing needs of the nation’s judicial officers, court employers, key stakeholders and the general public as according to him the policy will provide the needed foundation for the implementation of any Information Technology (IT) project in the judiciary.

Justice Musdapher charged the Nigerian Judiciary to embrace IT as a means of improving access to courts and increase transparency of the court process by providing information about court cases, court procedures, facilities and most importantly expedite the judicial process.

The JITPO has not only endorsed the use of Video Conferencing, but has clearly laid down guidelines for its application to the Nigerian Courts. It provides as follows:
“The use of video-conferencing technology is greatly encouraged in the Judiciary. Video-conferencing can be used to connect people in different physical locations especially for critical meetings and discussions. Video conferencing systems can also be used to enable testifying witnesses appear in court without having to travel to the courtroom. Expert witnesses, prisoners, and various other witnesses can provide the same testimonies from remote locations. From the prison, prisoners will see and hear everything that takes place in the courtroom and will be able to answer questions posed to them by the judges and lawyers…Videoconferencing in the court system offers significant cost savings and improved security by reducing the need for high-security prisoner transport. The entire courtroom experience will be made shorter, safer and more cost-effective.”
In ESSO WEST AFRICA INC. v.  T. OYEGBOLA (1969) NMLR 198, the Supreme Court pronounced that: “The law cannot be and is not ignorant of the modern business methods and must not shut its eyes to the mysteries of computer”.

The Court of Appeal, relied on the concept of judicial notice in admitting a computerized document in OGOLO v. IMB (NIG) LTD. (1995) 9 NWLR (Pt 419) 324. The court held that it had become a notorious fact that commercial and banking operations in Nigeria had changed in keeping with the computer age such that the court could take judicial notice of them under section 74 of the old Evidence Act.

In OKEREKE v. UMAHI & ORS (2016) LPELR-40035(SC) NWEZE, J.S.C. at P. 36, Paras. A-B, held on the definition of "CARD READER": thus:
"According to Wikipedia, the Free Encyclopaedia, the INEC card reader is  a  portable  electronic  voter  authentication  device.  Designed, specifically,  for  the  accreditation  process  for  the  authentication  of eligible voters before voting, the machine was configured to read only the PVCS of a particular polling unit and can only work on Election Day, Wikipedia,  the  Free  Encyclopaedia,  (last  accessed  on  January  30, 2016)".
Furthermore, in MRS.BETTY DAREGO v. A. G. LEVENTIS (NIGERIA) LTD & 3 ORS, LER[2015]CA/L/481/2011, the Court of Appeal PER Y.B. NIMPAR, J.C.A held on the meaning of the word "PREPONDERATE" thus:
“Preponderate according to www.dictionary.com is a verb and its, original meaning is “to weigh more than” and its source is the Latin word ‘praeponderare’ meaning “out weight”, “to exceed in force or power”. Preponderance would therefore mean greater weight, a sense of greater importance.”

In the above cases, it can be seen that the court used a dictionary available on the web: dictionary.com and Wikipedia.com to define the word "preponderate" and “card reader” respectively. Before now the justices would have most likely resorted to the traditional lawyers’ dictionary; the Black’s Law Dictionary, but in this instance they did not. It is therefore good to note that our Lordships are utilizing the web to research and cite same as sources of information in their judgments. This is a welcome development. It means that our courts are not oblivious of technological advancements or ICT and how they can be used to aid the administration of justice.

It is therefore not surprising that the JITPO enjoins the judiciary not to “turn a blind eye to the mysteries of the computer” which necessarily includes the use of video conferencing for taking witness testimony, but to embrace ICT as means of improving access to courts, increasing transparency of the court process by providing information about court cases, court procedures, facilities and most importantly expediting the judicial process. The use of video conferencing no doubts contributes to the expediting of the judicial process by saving costs and delays as witnesses can testify from any location without necessarily being physically present in the court room.

In view of the foregoing, it is submitted that a court of law in Nigeria is allowed to make use of video conferencing for taking witness testimony where the interest of justice would be served. The courts are not to rely on technicalities or the lack of a specific provision for video conferencing in our substantive or procedural laws to reject the use of video conferencing.

EXAMPLES FROM FOREIGN JURISDICTIONS

UNITED STATES
In the United States certain district courts are allowed to use videoconferencing for prisoner civil-rights-pretrial proceedings. The US Courts of Appeals for the Second, Tenth and District of Columbia, Circuits use videoconferencing for oral arguments.

In MARYLAND v. CRAIG 497 US 836 (1990) the US Supreme Court accepted child witness testimony via one-way video. In HARRELL v. STATE, 709 So. 2d 1364 (Fla. 1988), the Florida Supreme Court sustained a robbery conviction based largely on the two-way video testimony of complainants testifying from Argentina. Rule 3.190(J) of the Florida Rules of Criminal Procedure provides the circumstances under which and procedure by which a party can take a deposition to perpetuate testimony for those witnesses that are unavailable. Thus, in all future criminal cases where one of the parties makes a motion to present testimony via videoconferencing, it is incumbent upon the party bringing the motion to:
(a)             verify or support by the affidavits of credible persons that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing; and
(b)            establish that the witness’s testimony is material and necessary to prevent a failure of justice.

If all the above requirements are met the court is allowed to make use of videoconferencing to take witness testimony.

UNITED KINGDOM
In the UK, the Access to Justice Act, 1999 allows VC to be used for civil hearings, e.g. case management conferences, ancillary relief hearings, overseas or remote witnesses or in any civil cases in which the court directs the use of video and the parties involved consent to its use.
Furthermore in the UK, Section 51 of the Criminal Justice Act 2003 enables the court to allow witnesses (other than the defendant) in the United Kingdom to give evidence by live link if the court is satisfied that giving evidence in this way is in the interests of the efficient or effective administration of justice.
Section 51 was piloted in 5 Crown Court centres and was restricted to serious sexual offences. The Criminal Justice Act 2003 (Commencement No. 24 and Transitional Provisions) Order 2010 extended live links to all witnesses in all cases for all criminal offences in all courts and came into force on 26 April 2010. The witness does not have to be a special 'category' of witness (for instance vulnerable or intimidated as defined by the Youth Justice and Criminal Evidence Act 1999 [YJCEA]).
"Live link" is defined in section 56(2) and will usually mean a closed circuit television link, but could apply to any secure technology with the same effect such as video conferencing facilities or the internet.
The benefits of the effective use of section 51 live links include a reduction in waiting times for professional and expert witnesses and reducing delay in the listing of some cases.
A court may only authorise the use of a live link if it is in the interests of the effective or efficient administration of justice for the witness to give evidence by way of a live link - for example, a witness may be able to give evidence from a court in a different part of the United Kingdom rather than have to travel to the trial court (subsection (4)[a]).
Section 51(6) sets out the matters that the court must consider when deciding whether to authorise the use of a live link (subsection (6)). These are: 
(i)the availability of the witness; 
(ii) the need for the witness to attend in person;
(iii) the importance of the witness's evidence to the proceedings; 
(iv) the views of the witness; 
(v) the suitability of the facilities at the place where the witness would give evidence through a live link; 
(vi) whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence.
Section 52 provides that where a direction for a live link has been given that witness must give all their evidence through a live link. This makes it clear that any cross-examination of the witness is also to be given by live link, although the court can rescind a direction if it seems to be in the interests of justice to do so.
Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court.
CANADA
In the Canadian case of CHANDRA v. CBC, 2015 ONSC 5385 (CanLII), a few days before the commencement of trial, the defendants requested that five of their witnesses four of which lived in the UK and one in the United States, be permitted to testify via video-conference at the trial. The plaintiffs opposed the request but the court overruled them and noted that Rule 1.08(1) of the Rules of Civil Procedure permits trial evidence by telephone or video conference. If the parties both do not consent to a witness giving evidence by telephone or video-conference then it is open to the court on motion or on its own initiative to make an order directing a telephone or video conference on such terms as are just.

The court further noted that the factors to be considered in exercising this discretion are set out in Rule 1.08(5) and are as follows:
(a) The general principle that evidence and argument should be presented orally in open court;
(b) The importance of the evidence to the determination of the issues in the case;
(c) The effect of the telephone or video conference on the court's ability to make findings, including determinations about the credibility of witnesses;
(d) The importance in the circumstances of the case of observing the demeanour of a witness;
(e) Whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;
(f) The balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and
(g) Any other relevant matter.

The court also held that:
"While the general principle that trial evidence should ordinarily be presented orally is clearly and unequivocally articulated by rule 1.08(5)(a) it is appropriate, particularly in light of the culture shift advocated by the Supreme Court of Canada, to take a 21st century view of the use of video conferencing (and similar technologies)....The use of video or similar technologies does not now represent a significant deviation from the general principle favouring oral evidence in court. Such evidence is given orally, under oath or affirmation, and is observable "live" as it would be with the witness present in the courtroom. Questions are asked and answers are given in the usual way. The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the individual was physically present can be observed on the screen. The evidence is received by the court and heard and understood by counsel and any members of the public who may be present in the courtroom at the time…a court should be reluctant to deprive itself and the parties of the opportunity to receive the testimony of a non-party witness through video conferencing."

SOUTH AFRICA
In South Africa section 158 of the Criminal Procedure Act 1977 (Act No. 51 of 1977, as Amended up to Criminal Law (Forensic Procedures) Amendment Act, 2010), provides that criminal proceedings take place in the presence of the accused. An exception is provided for in section 158(2)(a) namely:
“(2)(a) A court may, subject to section 153, on its own initiative or on application by the public prosecutor, order that a witness or an accused, if the witness or accused consents thereto, may give evidence by means of closed circuit television or similar electronic media.
(b) A court may make a similar order on the application of an accused or a witness.
(3) A court may make an order contemplated in subsection (2) only if facilities therefore are readily available or obtainable and if it appears to the court that to do so would –
(a) prevent unreasonable delay;
(b) save costs;
(c) be convenient;
(d) be in the interest of the security of the State or of public safety or in the interests of justice or the public; or
(e) prevent the likelihood that prejudice or harm might result to any person if he or she testifies or is present at such proceedings.
(4) The court may, in order to ensure a fair and just trial, make the giving of evidence in terms of subsection (2) subject to such conditions as it may deem necessary: Provided that the prosecutor and the accused have the right, by means of that procedure, to question a witness and to observe the reaction of that witness.
(5) The court shall provide reasons for refusing any application by the public prosecutor for the giving of evidence by a child complainant below the age of 14 years by means of closed circuit television or similar electronic media, immediately upon refusal and such reasons shall be entered into the record of the proceedings.”
INDIA
In the India the courts are allowed to make use of videoconferencing facilities to receive  evidence  and  submissions  from  witnesses  or  persons  involved  in  court proceedings  in  circumstances  where  it  would  be  expensive,  inconvenient  or  otherwise  not desirable  for  a  person to  attend  a  court  in  person.  An  over-riding factor  is  that  the  use  of  video-conferencing  in  any  particular  case  must  be consistent  with  furthering  the  interests  of  justice  and  should  cause  minimal disadvantage to the parties. However, it is for the Court to decide whether evidence should be recorded by video-conferencing.

“Wherever  possible,  proceedings  by  way  of  video  conference  shall  be conducted  at  Judicial  proceedings  and the  same  courtesies  and  protocols  will  be observed.  All, relevant statutory provisions applicable to judicial proceedings including the provisions of the Information Technology Act, 2000 and the Indian Evidence Act, 1872 shall apply to the recording of evidence by video conference. Video conferencing facilities  can be used in all  matters  including remands, bail  applications  and  in  civil  and  criminal  trials  where  a  witness  is  located intrastate,  interstate,  or  overseas.  However, these guidelines will not apply to proceedings under section 164 of Criminal Procedure Code.
The guidelines further provides that: “a court may either suo moto or on application of a party or a witness, direct by a reasoned order that any person shall appear bef9re it or give evidence or make  submissions to the Court through video conference.”

CONCLUSION
ICTs play a key role in managing case load, publishing information for court users, managing knowledge within the court, supporting the preparation and conduct of litigation and presenting evidence and preparing and publishing judgments.

It is proposed that the various rules of courts of the various courts in Nigeria and the criminal procedure laws of the various states should be amended to specifically provide for videoconferencing and the use of technology in assisting remote witness testimony. Doing so would provide a uniform set of guidelines or rules to be adopted by the courts in making use of video conferencing whenever the need arises.

POSER
Section 212 provides that on the application of either party, or of its own motion, the court may order witnesses on both sides to be kept out of court; but this provision does not extend to the parties themselves or to their respective legal advisers, although intended to be called as witnesses. 

So assuming two witnesses are to testify from a remote location through VC, how can the court determine that the other witness is not hiding out of view of the video camera and watching and listening to the other witness as he testifies? By section 212 above, a witness in a case except where is a party to the case, is not allowed to be in court while a witness is testifying.

Monday, 23 July 2018

ATM DISPENSE ERROR: COURT FIXES DATE FOR JUDGEMENT



In 2016 a lawyer sued FCMB Ltd and UBA Plc over ATM partial dispense error. The lawyer had tried to withdraw the sum of N8,000 from his account with FCMB on UBA ATM, the machine partially released cash but before he could pick it up, the cash was retracted by the ATM. FCMB refused to make a refund after a request by the lawyer on the grounds that the transaction was successful according to UBA. In the course of trial, UBA provided ATM Electronic Journal and CCTV video footage and ATM camera still photos, which only showed the lawyer standing by the ATM but did not show him picking money from the machine, to prove that the ATM presented the sum of N8,000 which was taken by the lawyer.



On the 13th of July, 2018 the Final Written Address of parties in the case were adopted. The case was then adjourned to 21st of September, 2018 for judgement. This is hoping that the court will enter judgement in favour of the customer so as to give other multitude of customers who have suffered a similar fate at the ATMs of banks in Nigeria, the courage to seek redress in a court of law where the bank refuses to reverse the failed transaction and make a refund to the customer.

Tuesday, 12 June 2018

DOWNLOAD A COPY OF THE JUDGEMENT IN ATM DISPENSE ERROR CASE

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On the 24th of May, 2018 a Benue State High Court, sitting in Makurdi, delivered judgement in the case of of KUME BRIDGET v. GTBANK PLC & UBA PLC (SUIT No. MHC/198/14). A case that has been reported as the "First Nigerian Case on ATM Dispense Error". A copy of the judgement has been obtained and can be downloaded here and here. Please download, read and make your comments and suggestions in the comments section of this page or send them to timoteetion@gmail.com.

Thursday, 24 May 2018

UPDATE AND MY INITIAL OPINION ABOUT THE JUDGEMENT IN KUME BRIDGET vs GTBANK PLC & UBA PLC


INTRODUCTION
A Benue State High Court of Justice, sitting in Makurdi, today the 24th of May, 2018, delivered judgement in the case of KUME BRIDGET v. GTBANK PLC & UBA PLC (SUIT No. MHC/198/14). The case involved a claim of failed ATM transaction as alleged by the plaintiff  and it was probably the first Nigerian case to seek to address the failure of ATM to dispense cash as other ATM cases had dealt with unauthorized ATM withdrawals. In unauthorized withdrawals the customer goes to the bank or ATM to make withdrawals and then learns that certain amount has been debited from his account or he is in possession of his ATM card and suddenly receives debit alerts on his account while in non-dispense or partial dispense of cash, the customer has sufficient funds in his account, attempts to make a withdrawal and the ATM does not dispense cash but his account is debited or dispenses less cash than that requested by the customer.

BRIEF FACTS OF THE CASE
The Plaintiff sometimes in October, 2013 attempted severally to withdraw money from the ATM of 2nd Defendant but according to the plaintiff the ATM failed to dispense cash nevertheless her account was debited. The Plaintiff claimed that on she had on 2nd October, 2013 withdrawn money and her account balance showed N95, 213.07. However, when she attempted to withdrawn N20,000.00 only on 3rd October, 2013 the machine displayed a message that she had insufficient funds. She further tried withdrawing N20,000.00 twice but the same message displayed. She left the ATM and came back to the same ATM on 4th October, 2013 to withdraw N20,000.00 and then N10,000.00 but the same message of the previous day was displayed. According to the Plaintiff she was engaged in some other pressing engagements so she was only able to make a complaint to her bank; the 1st Defendant (GTBANK Plc) on 8th October, 2013 as 5th and 6th were Saturday and Sunday respectively.

According to the defendants the withdrawal attempts were successful. Plaintiff disagreed and sued the Defendants. The Defendants relied on the debit entries in the Plaintiff’s Statement of Account, the ATM Electronic Journal Log of 2nd Defendant and the ATM Camera footages to contend that the ATM of the 2nd Defendant dispensed cash which was picked up by the Plaintiff. The 2nd Defendant also contended that the Plaintiff is not a credible witness because she failed to instantly report the failed transaction to her bank.

DECISION OF THE COURT
The court held that plaintiff failed to prove that the ATM of the 2nd Defendant (UBA Plc) didn't dispense cash to her the various times she attempted to make withdrawals. In reaching this conclusion the court found that the Plaintiff isn't a credible witness because she didn't report the alleged failed transactions until after 5 days. The court also relied on the debit entries in Plaintiff's Statement of Account and the entries of PIN entered, Cash Presented and Cash Taken recorded in the 2nd Defendant's ATM Electronic Journal logs regarding the Plaintiff's withdrawal transactions. The court further reasoned that the documentary evidence namely; the statement of account and ATM Electronic Journal log supersedes the oral evidence of the Plaintiff that she didn't get money from the ATM of 2nd Defendant.

The court in the judgement said it sympathised with the Plaintiff but that court judgements are based on law and evidence and not on sentiments.

OPINIONS
I had the opportunity of reading through ALL the processes filed in the case. In appraising the evidence in the case the court failed to consider the inconsistent entries in the ATM journal logs and the fact that both the 1st and 2nd Defendants' witnesses admitted under cross examination that entries or record of transactions in the ATM journal aren't always accurate or error proof, meaning that the court ought not to have attached much weight to such a piece of evidence that is not reliable even though it is documentary evidence, which is held to be superior to oral evidence.

The court also didn't appraise the ATM camera footage presented by the 2nd Defendant which didn't show the ATM of 2nd Defendant dispensing cash and the Plaintiff picking up the said cash. In fact the ATM camera images (still photos and not video recording) were so blurred that one could not make out the person in the photo and whether it was in front of an ATM, let alone the ATM of the 2nd Defendant). 

The court also failed to consider the admission under cross examination of both defendants’ witnesses that the Central Bank of Nigeria (CBN) in 2014 directed banks to refund to customers, monies trapped in ATMs as a result of ATM non-dispense or partial dispense errors.

POSERS
How can a bank customer be expected to successfully prove that the ATM of a bank didn't pay her cash when she attempted a withdrawal transaction but her account was nevertheless debited and the debit was recorded in her statement of account? On whom should the burden of proof lie in such a case? Who has  superior access, control and custody of evidence of a successful ATM withdrawal transaction; the bank customer or the bank? 

SOLUTIONS/ANSWERS TO POSERS
All you readers are enjoined to attempt answers or provide solutions to the posers above. After all, Anton Chekov, once said: “The task of a writer is not to solve the problem but to state the problem correctly.” I have stated the problem correctly so you readers provide answers. 

CONCLUSION
The judgement is a sad one for the multitude of ATM users in Nigeria who suffer from ATM non-dispense or dispense errors and which even the Central Bank of Nigeria is aware of and once directed the banks to refund  to customers, monies trapped in banks' ATMs due to partial or non-dispense errors. About two years after the initial directive by the CBN issued in 2014, it was reported that "inundated by complaints from bank customers over delays and most times non-reversal of dispense errors encountered during electronic transactions, CBN has said it will start monitoring banks to ensure that dispense errors are automatically reversed and the account of the customer credited."


Tuesday, 14 November 2017

NIGERIAN JUSTICES: MOVING WITH THE TIMES


In the case of Mrs Betty Darego v. A.G. Leventis (Nigeria) Ltd & 3 Ors, LER[2015] CA/L/481/2011, the Court of Appeal PER Y.B. NIMPAR, J.C.A held on the meaning of the word "PREPONDERATE" thus:
“Preponderate according to www.dictionary.com is a verb and its, original meaning is “to weigh more than” and its source is the latin word ‘praeponderare’ meaning “out weight”, “to exceed in force or power”. Preponderance would therefore mean greater weight, a sense of greater importance.”

Comments
In the above quote, it can be seen that the court used a dictionary available on the web: dictionary.com, to define the word "preponderate." It is good to note that our Lordships are utilizing the Internet to research and cite same as sources of information in their judgments. This is a welcome development and it's hereby suggested that such practice should be emulated and maintained.

Before now many a lawyer thought that judges, especially justices of  the Court of Appeal and Supreme Court were old men and women who were Luddites (one who is opposed to especially technological change) or technophobes (a person who fears, dislikes, or avoids new technology) but it appears the justices are now taking steps to change that perception and that is commendable.

This is hoping that lawyers too will take up the cue by His Lordship Nimpar J.C.A by carrying out research using the web and also citing web references or hyperlinks in their written briefs. I read some briefs filed by lawyers in the US and judgments from there as well and I see hyperlinks cited in support of arguments and submissions.

Difficulties
Citing web references in legal documents has its down side because of link rot. Link rot is created when a Web page is moved, taken down or reorganized. Clicking on a rotten link usually results in a 404 error, which includes a message that the page cannot be found. According to Tom Venetis:
"Link rot commonly refers to a situation in which a hyperlink that links to a document or an online site no longer leads to the site or content. Another related problem is reference rot where the hyperlink continues to work, but the content of the site the link refers to has changed, but does not tell a person where that site or document is now located. The problem in the same in both cases. Information that one is looking for is now not easily found, or cannot be found at all."

A study titled “Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010)", published in the Yale Journal of Law and Technology in 2013, found that nearly one-third of the websites cited by the U.S. Supreme Court were non-functioning, many of which linked to government or education domains.

Solutions
In the US, Michigan's Supreme Court archives all its cited links through Perma.cc, a crowd sourced link preservation site launched by the Harvard Library Innovation Lab. While anyone can put links on the Perma.cc server, they have to be renewed every two years in order to not expire. But links posted by universities, courts and journal editors stay permanently in the database.

There is also Webcite (http://www.webcitation.org/) which according to Wikipedia is: 
"an on-demand archiving service, designed to digitally preserve scientific and educationally important material on the web by making snapshots of Internet contents as they existed at the time when a blogger, or a scholar or a Wikipedia editor cited or quoted from it. The preservation service enables verifiability of claims supported by the cited sources even when the original web pages are being revised, removed, or disappear for other reasons, an effect known as link rot." 

WebCite is a non-profit consortium supported by publishers and editors, and it can be used by individuals without charge.