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cash was retracted, nevertheless N8,000 was deducted from his account with FCMB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.
