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2nd October, 2013 withdrawn money and her account balance showed N95,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 However, when she attempted to withdrawn N20,000.00 only on 3rd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.
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."
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."