LAWYER SUES FCMB & UBA OVER N8, 000.00 WRONGFULLY DEBITED FROM HIS ACCOUNT, CLAIMS N10M DAMAGES

It appears that the cases of non-dispense or partial dispense error by ATMs in Nigeria still persists in spite of the efforts of the banks’ regulator; the Central Bank of Nigeria (CBN).

The case of Barrister Timothy Tion vs. FCMB Ltd. & UBA Plc. is a classic case of ATM dispense error. The facts of the case are that Barrister Tion tried to withdraw the sum of N8, 000.00 only at the ATM of UBA on the night of February 5^th 2016. He entered the amount of N8, 000.00 and the ATM partially released cash but before he could pick it up, the cash was retracted by the ATM. Barrister Tion sent emails to FCMB Ltd and UBA Plc. intimating them of the failed transaction and demanding for a refund. He also visited FCMB Ltd and made a complaint by filing an ATM dispense error.

However, after much toing and froing over a period of 4 weeks he was informed by FCMB Ltd that UBA Plc. declined his complaint and that the ATM paid him. However, they did not provide any evidence to prove their claim. Barrister Tion rejected their claim and demanded for evidence of the ATM dispensing cash and him picking it up but the banks failed to provide any and he has subsequently sued the banks.

In the case filed before the Benue State High Court on Friday 13^th May, 2016 with case number MHC/161/16, the barrister (plaintiff) is claiming the following reliefs as contained in the statement of claim thus:

(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.

Research revealed that bank customers suffer similar fate as Barrister Tion and in some instances the amount is rather higher than the N8, 000.00 involved in Barrister Tion’s case but most of the customers give up on following up the matter to its logical conclusion as they get frustrated by the banks telling them to check back or go and come back after 7 days and so forth on several occasions.

It is instructive to note that the banks’ regulator; the Central Bank of Nigeria (CBN) is in the know of this issue of non-dispense or partial dispense errors and as recently as 2014 issued a circular with ref no. BPS/DIR/CIR/01/008 dated 11/6/2014 entitled: Non-Refund of Monies to Customers Short-changed by ATMs’ Non-Dispense or Partial Dispense Error; directing all deposit money banks to refund to customers all monies trapped in ATMs due to non-dispense or partial dispense error. It was also reported in 2014 that several billions of Naira remained caught up in failed ATM transactions across the branches of Nigeria’s 25 deposit money banks nationwide, thus causing pain and frustration to many of the country’s 25 million bank customers.

Furthermore, the Guidelines for Card Issuance and Usage in Nigeria; released by the CBN Banking and Payment System Department in May, 2014, provides that “All debit entries arising from failed transactions attributable to system-related issues must be auto-reversed. Where auto reversal is not feasible, manual reversal must be carried out within 24 hours,”

Also the CBN Standards and Guidelines on Automated Teller Machine (ATM) Operationsin Nigeria, 2010 and the Guidelines on Operations of Electronic Payment Channels in Nigeria, 2016 all provide that:

Every ATM shall have cameras which shall view and record all persons using the  machines  and  every  activity  at  the  ATM  including  but  not  limited  to:  card insertion,  PIN  entry,  transaction  selection,  cash  withdrawal,  card  taking,  etc. However,  such  cameras  should  not  be  able  to  record  the  key  strokes  of customers using the ATM

The CBN in a circular dated 7^th February, 2011 with ref. no. BPS/DIR/CIR/GEN/02/003 decried the continued non-compliance by banks with CBN circulars and guidelines on ATM operations in Nigeria and also stipulated some penalties for non-compliance. Some of the penalties stipulated by the CBN include:

•  An ATM without a camera installed will attract a fine of N50,000 and deactivation of the ATM until the camera is installed.
• An ATM deployer will be made to refund the full amount Involved in any fraud perpetrated on its ATM for failure to provide footages on the disputed transactions when required.
•        Failure to resolve any ATM dispute with evidence of resolution within 14 days, the deployer will refund the total amount involved in the fraud.

(c)         It appears that despite the penalties stipulated by the CBN some banks’ ATMs do not have cameras installed or else how can one explain a situation where a bank claims a customer withdrew money or ATM dispensed cash which was taken by the customer yet fail to provide visual proof or evidence(video recordings and pictures) to support their claim. What then is the essence of the CBN demanding that ATMs should have cameras installed on them? Could it be that the CBN is not monitoring and enforcing the provisions of the guidelines mentioned above? Or could it be that the penalties are not grave enough to deter the banks from non-compliance?

Further research also revealed that UBA Plc. seems to be involved in most cases of non-dispense or partial dispense errors or withdrawals made without the authorization or knowledge of the bank customer as demonstrated by a number of cases in law courts decided against UBA Plc. For instance see the following cases; (1) BARR. GEOFFREY AMANO v. UBAPLC SUIT NO: PHC/257/2011, which is a judgement of the High Court of Rivers State of Nigeria, Holden at Port Harcourt, delivered by Sir Hon. Justice B. A. Georgewill, sitting in High Court 11 (2) VICTOR EJE V. UBA PLC SUIT NO. MHC/323/2010 which is a judgement of the High Court of Benue State of Nigeria, Holden at Makurdi, delivered by Hon. Justice T. A. Igoche, sitting in High Court 7 and (3) UBA PLC v. YAHUZA (2014) LPELR-23976 (CA) which is a judgement of the Court of Appeal(Kaduna Judicial Division).

THE PLIGHT OF BUSINESS OWNERS WISHING TO ADVERTISE THEIR PRODUCTS AND SERVICES UNDER THE LAW

The 2016 Doing Business report ranks Nigeria at 181 in the ranking of 189 economies on the ease of paying taxes. Advertisement tax or levies differs from state to state in Nigeria. Advertisement simply put may refer to any act done to promote a product or service. Advertisement is therefore a key ingredient for the success of any commercial venture. However, advertisement needs some form of regulation and therefore the government has made laws in that regard.

The Fourth Schedule to the 1999 Constitution of the Federal Republic of Nigeria as Amended, at paragraph 1(k)(i) provides for the main functions of a Local Government Council to include control and regulation of out-door advertising and hoarding.

Also, the Taxes and Levies (Approved List for Collection) Decree No 21 of 1998 Laws of the Federation of Nigeria under Schedule 1 Part II provides that Signboard and Advertisement permit fees are to be collected by the Local Government. See page A35 of the State Internal Revenue AdministrationLaw of Benue State, 2015 which also list the signboard and advertisement permit fees to be collected by local governments in the state. On page A115 of the same law; Establishment of Led Electronic Billboard and Annual Subscription on Led Electronic Bill Board is also listed as fees/taxes to be collected by the state Ministry of Science and Technology.

Furthermore, the State Internal Revenue Administration Law, 2015 on page A114 provides for the collection of Advertisement Location Approval Fees by the Benue State Urban Development Board.

The Nigerian Urban and Regional Planning Act No. 88 of 1999(which is encapsulated under CAP N138 of the Laws of the Federation of Nigeria, 2004 under section 73(1) also provides that the “control department” shall regulate the dimensions, appearance, display, siting and manner in which an advertisement board shall be affixed to land. Subsection 2 of the same Act further provides that no person shall display an advertisement without the written consent of the control department. By the above provisions it is the control department established by section 27 of the National Urban and Regional Planning Act that is empowered to grant approval or regulate outdoor advertisements affixed to land.

Section 91 which is the interpretation section of the Act defines “control department” to mean any agency performing the duties of urban and regional planning and development control at the Federal, State and local government level. The section further states that “development” means the carrying out of any building, engineering, mining or other operations in, on, over or under any land, or the making of any environmentally significant change in use of any land or demolition of buildings including the felling of trees and the placing of free-standing erections used for the display of advertisements on the land and the expression “develop” with its grammatical variations shall be considered accordingly.

Flowing from the foregoing provisions of the Nigerian Urban and Regional Planning Act the Benue State Urban Development Board (BSUDB) is the control department referred to in section 91 above since at the state level it is the agency that performs the duties of urban and regional planning and development control. See section 6 of the Benue State Urban Development Board Law.

The question then is to whom should the business owner wishing to advertise his products or services on signboards or signage pay signboard and advertisement permit fees to? Is it to the Local Government Council, BSUDB or Ministry for Science & Technology? If he is to pay the fees to all these government bodies would it not amount to double or multiple taxation or levies? What is the difference between advertisement location approval fee and signboard and advertisement permit fees?

 

In view of the above it is therefore suggested that the authorities concerned and stakeholders should work together to see how these levies and fees can be consolidated in order to avert or minimise the hardships these scattered and multiple levies and fees are imposing on business owners who wish to advertise their products and services on signboards, signage, etc. and improve on the appalling rank of 181 out of 189 occupied by Nigeria in the ranking of 189 economies on the ease of paying taxes.

If the above suggestion is put in place it would no doubt be of benefit to the economy as the 2016 Doing Business report earlier mentioned also states thus:

“Economies around the world have made paying taxes faster, easier and less costly for businesses—such as by consolidating payments and filings of taxes,   offering electronic systems for filing and payment, establishing taxpayer service centers or allowing for more deductions and exemptions. Many have lowered tax rates. Changes have   brought   concrete   results.   Some   economies simplifying tax payment and reducing rates have seen tax revenue rise.”

PROPER CUSTODY AND DOCUMENTS POSTED ON THE CBN WEBSITE

The Central Bank of Nigeria (CBN) routinely issues guidelines and circulars which are usually posted to its website: cenbank.org. Which officer of the CBN is by the ordinary course of official duty, authorized to deliver copies of documents posted on the CBN website? In whose "proper custody" are documents (i.e. guidelines and circulars issued by CBN) posted on CBN's website? Is it a particular CBN department or head/director of a department from which the document originated from? Since the documents are posted on the CBN’s website can’t they be deemed to be from proper custody if they are delivered by any officer of a CBN branch office other than the headquarters in Abuja? 

In KEYSTONE BANK LIMITED v. A. O. S. PRACTICE (2013) LPELR-20357(CA) the Court of Appeal per Ibrahim Mohammed Musa Saulawa (JCA) held thus:

“Regarding certification of public document, section 104 of the Evidence Act is very much instructive. And by virtue of the said section 104:-

(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees thereof, together with a certificate written at the foot of such copy that it is a true copy of such document or pact thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

(2) Any officer who, by the ordinary course of official duty, is authorized to deliver such copies shall be deemed to have custody of such documents within the meaning of this section. The term 'proper custody', as couched in section 104 of the Evidence Act, denotes the custody of any official who in the ordinary course of the official duties or functions thereof is authorized to deliver certified copies of the public document to any member of the public. Thus, the legal appointment of the official certifying the copy of the public document is needless or immaterial. It's sufficient to merely show that the official is defecto the custodian of the document. See R. VS. PARSONS (1866) L.R.I. CCR 24; 10 COX 243.””

Mr. A, in Bama, Borno State, intending to rely on such documents in legal proceedings approaches CBN branch office in Maiduguri for certification but he is referred to CBN headquarters in Abuja. Why should Mr. A apply to Abuja for certification? Can't an officer of CBN in the CBN's branch in Borno State or any neighbouring state for that matter be able to download the documents posted on CBN's website and certify same for Mr. A?

I think that the purpose of certification is to verify that the documents intended to be relied upon by a party is genuine and same as the original in the custody of the officer. If so the CBN branch should be able to download the documents and verify from the particular department which originated or made the documents that what is on the website is what was actually issued by the said department and then certify accordingly. The bureaucratic delays of either going to Abuja to apply or sending in an application and asking someone to help follow up the application in Abuja constitute a clog in the quick dispensation of justice.