ATM DISPENSE ERROR: FCMB DENIES LIABILITY ON THE GROUND THAT ATM USED DOESN'T BELONG TO THEM

It would be recalled that FCMB Ltd and UBA Plc were sued in May, 2016 by Barrister Timothy Tion; customer of FCMB Ltd, over non-dispense of cash when he attempted to withdraw money at the ATM of UBA Plc in February, 2016.

The defendant banks have filed processes in response to the suit by Barrister Tion. Both defendants filed an application for extension of time to enable them file their memoranda of appearance and statements of defence out of time. The 1^st defendant (FCMB Ltd) also filed a preliminary objection (P.O.) urging the court to strike off its name from the case as the plaintiff has not disclosed any cause of action against her on the ground that the ATM where the disputed transaction occurred belongs to UBA Plc and not FCMB Ltd. Specifically, the 1^st defendant in her P.O. contends:

1.That  the  transaction  that  gave  rise  to  this  suit  took  place  at  the ATM  Stand  of  the  2^nd  defendant  and  not  the  1st  defendant’s  as clearly  stated  in  paragraph  5  of  the  statement  of  claim.

2.  That  the  1^st  defendant  has  its  ATM Stand  for  the  use  of  its  various customers  including  the  plaintiff  and  the  plaintiff  wilfully  decided  to  use  the  2nd  defendant’s  ATM.

3.  That  the  report  from  the  2^nd defendant  showed  that  the  2^nd defendant’s  ATM  paid the plaintiff the  said  N8,000  and the  1^st defendant  passed  same  information  to  the plaintiff.

4.  That  there  is  no  paragraph  of  the  statement  of  claim  that  disclosed a cause  of  action  against  the  1^st defendant  in  this  suit.  This  can  be clearly shown from Paragraphs  5  to  46  of  the  statement  of  claim particularly  paragraphs  30  and  32  of  it.

The plaintiff has filed a reply in response to the P.O. filed by 1^st defendant and the 1^st defendant has also filed a reply on points of law to the plaintiff’s reply.

Hearing of the applications and the P.O filed will take place on the 27^th September, 2016.

This case appears to be a test case with regards to ATM transactions or electronic banking in general in Nigeria as it deals with a novel situation which appears not to have been dealt with in other cases of disputed transactions by the courts in Nigeria.

Whereas, other cases of disputed ATM transactions decided by the courts in Nigeria, namely; UBA Plc v Yahuza (2014) LPELR-23976 (CA), Archibong v First Bank of Nigeria Plc (2014) LPELR-22649(CA), Benjamin Agi v. Access Bank Plc (2014) 7 BNLR 23 CA, Victor Ejeh v UBA Plc (unreported) Suit No MHC/323/2010, judgment delivered on 3^rd of February, 2012 by Igoche, J. at the High Court of Justice of Benue State of Nigeria, Barrister Geoffrey Amano v UBA Plc (Suit No PHC/257/2011), judgment delivered on 22^nd April, 2013 by Georgewill, J. at the High Court of Justice of Rivers State of Nigeria, and Joseph v Unity Bank Plc (unreported) Suit No MHC/412/2013, judgment delivered on 22^nd of December, 2015 by Kakaan, A. at the High Court of Justice of Benue State of Nigeria, involved unauthorized withdrawals which the plaintiff customers only became aware when they attempted to make withdrawals, the case of Barrister Tion and that of Kume Bridget Ashiemar v GTB Plc & UBA Plc, Suit No: MHC/198/14, currently being tried before High Court No. 7 of the High Court of Justice of Benue State, involves non-dispense of cash by the ATM.  

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 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.

In Barrister Tion's case the court will also have to decide on the very important issues as to whether there is any law, rule or regulation in Nigeria which prohibits a customer of a particular bank from using the bank’s ATM card to withdraw money or perform ATM transactions at another bank’s ATM and  whether if a customer of a bank uses the ATM card issued to him by his bank to withdraw money on the ATM belonging to another bank and the ATM fails to dispense money because of ATM dispense error, yet the customer’s account is debited, which of the banks should be held liable or are both banks to be jointly held liable?

For all the updates involving these two very important and epoch making cases i.e. the case  of Barrister Tion and the case of Kume Bridget Ashiermar, keep a date with this blog.