HISTORICAL CELL SITE LOCATION INFORMATION AND TELCOS IN NIGERIA

According to Wikipedia.com, a telco i.e. telephone company, telephone service provider or telecommunications operator:

is a kind of communications service provider (CSP) (more precisely a telecommunications service provider or TSP) that provides telecommunications services such as telephony and data communications access…With the advent of mobile telephony, telephone companies now include wireless carriers, or mobile network operators. Most telephone companies now also function as internet service providers (ISPs), and the distinction between a telephone company and an ISP may disappear completely over time, as the current trend for supplier convergence in the industry continues.

Historical cell site location information or mobile/cell phone location data is a collection of past connections between a mobile phone and cell towers or telecommunications masts. A cell site is mobile phone base station or antenna where radio signals are sent and received. In  the United States case of State v. Earls, it was stated that “Cell or (mobile) phones register or identify themselves with nearby cell towers every seven seconds. Cell providers (like MTN, Glo, Etisalat and Airtel in Nigeria) collect data from those contacts, which allow carriers to locate cell phones on a real-time basis and to reconstruct a phone’s movement from recorded data.”

Most times when you call the call centre of your GSM network provider or telco in Nigeria such MTN, Glo, Etisalat or Airtel, to make a complaint or inquiry, the customer care representative will ask you what town or city and local government you are calling from. I am usually taken aback by this question because they (telcos) already know or at least can approximate my location so why bother to ask me.

Whenever a mobile telephone makes a call, the call is routed through a cell site located at a fixed geographic location. Mobile telephone companies keep records of which cell site processes a call, and through this information law enforcement agents can locate the position of the SIM card, and therefore infer the location of the telephone user. This was used by the Nigerian Police to obtain the location of Timothy Dung, an armed robbery suspect in the case of The State v. Timothy Dung. On page three of the judgement it was stated thus:

According to the PW2 on the 20/8/2010 a case of armed robbery was transferred from the ‘E’ Division Police Station to the State Criminal Investigation Department (CID). PW1 volunteered a statement before the police.

According to the PW2 they swung into action by applying their detective mechanism to arrest the person because the line snatched was still going. Police applied to court to obtain a court order to serve Airtel/Zain who was the service provider of the line (Zain) snatched from the PW1. Airtel/Zain complied with the court order and released the coordinate to the Police. The coordinate enabled the Police to set a security trapping system that showed them the exact direction and position where the accused (that) was using that particular line at that time was standing. The system gave the latitude and longitude on google earth. lt shows(sic) that the accused person who was with the stolen line was at Abuja and the call history of the line after the robbery was within Abuja town and a town in Plateau State.  However, about three' days back, the line was showing that it, was in Abuja. The Police went to Abuja and the system directed them to Federal Fire Service in Abuja town and they went there. When the PW2 and his team called the number/line, it rang and the accused received the call. The PW2 then arrested the accused and interviewed him.

The case of United States v. Allums, also shows that telcos know or can estimate the location of their subscribers or customers at any given time using historical cell site location information (CSLI) or cell site analysis. James Edward Allums on 30^th November, 2007, robbed a bank in Salt Lake City, Utah, United States. A bank employee dropped a chair from the second floor balcony onto Allums’ head as he stood brandishing a knife at a teller on the first floor.  In anger Allums removed his ski mask to look up and curse at the chair-dropper and in the process glowered directly into the surveillance camera. Allums had a mobile phone on him on 30th November.

Prosecutors introduced evidence that cell site tracking records showed that Allums’ phone, and presumably Allums, was located in close proximity to the bank and to two other locations also robbed by Allums. Thus, Allums was convicted on three counts of armed robbery.

Apart from historical CSLI mobile phone location can also be determined through GPS and mobile phone triangulation. At this juncture it is appropriate to state how mobile phone communications work as captured or explained in Re: Application for Telephone Information Needed for a Criminal Investigation:

Cell (mobile) phones operate through the use of radio waves.  To facilitate cell phone use, cellular service providers maintain a network of radio base stations—also known as cell towers (popularly referred to in Nigeria as mast)—throughout their coverage areas.

Whenever a cell phone makes or receives a call, sends or receives a text message, or otherwise sends or receives data, the phone connects via radio waves to an antenna on the closest cell tower, generating cell site location information (CSLI).  The resulting CSLI includes the precise location of the cell tower and cell site serving the subject cell phone during each voice call, text message, or data connection.  If a cell phone moves away from the cell tower with which it started a call and closer to another cell tower, the phone connects seamlessly to that next tower.

CSLI may be generated in the absence of user interaction with the cell phone. For example, CSLI may still be generated during an incoming phone call that is not answered.  Additionally, most modern smartphones have applications that continually run in the background, sending and receiving data without a user having to interact with the cell phone.

Indeed, cell phones, when turned on and not in airplane mode, are always scanning their network’s cellular environment. In so doing, cell phones periodically identify themselves to the closest cell tower—i.e., the one with the strongest radio signal—as they move throughout their network’s coverage area.  This process, known as “registration” or “pinging,” facilitates the making and receiving of calls, the sending and receiving of text messages, and the sending and receiving of cell phone data. Pinging is automatic and occurs whenever the phone is on, without the user’s input or control. A cell phone that is switched on will ping the nearest tower every seven to nine minutes. (Emphasis mine)

From the above it is crystal clear that CSLI can be used to estimate the location of an individual by identifying the nearest cell tower or mast and sector used when a call is made. It therefore presents circumstantial evidence of a person’s location.  This ability to locate a cell phone presents obvious benefits to law enforcement and intelligence authorities  as seen in the two cases referred to above. CSLI also poses a significant threat to privacy. Thus in State v. Earls (supra) the court observed that:

Advances in technology offer great benefits to society in many areas. At the same time, they can pose significant risks to individual privacy rights. This case highlights both principles as we consider recent strides in cell-phone technology. New improvements not only expand our ability to communicate with one another and access the Internet, but the cell phones we carry can also serve as powerful tracking devices able to pinpoint our movements with remarkable precision and accuracy.

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.

Freedom of Expression and the Blogger under Nigerian Law

The recent arrest of Abubakar Sidiqu; a blogger, by operatives of the Economic and financial Crimes Commission (EFCC) supposedly because of a post which is critical of the EFCC Chairman has brought to the fore once again the issue of freedom of expression and defamation especially on the Internet.

The 1999 Constitution of the Federal Republic of Nigeria (as amended) under section 39(1) provides for freedom of expression. But under section 39(3) the right to freedom of expression could be restricted by a law reasonably justifiable in a democratic society, for the purpose of preventing the disclosure of information received in confidence or for the purpose of maintaining the authority and independence of the courts and also section 45(1) which provides that nothing in section 39 shall invalidate any law that is reasonably justifiable in a democratic society, in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons.

Therefore the test to determine whether a law which limits freedom of expression is constitutional or otherwise is whether the law is:

·        (a) reasonably justifiable in a democratic society;

·        (b)for the purpose of preventing the disclosure of information received in confidence;

·        (c)for the purpose of maintaining the authority and independence of the courts;

·        (d)in the interest of defence;

·        (e)in the interest public safety;

·        (f)in the interest public order;

·        (g)in the interest public morality;

·        (h)in the interest public health; or

·        (i)for the purpose of protecting the rights and freedom of other persons.

The question that follows therefrom is whether the following laws which tend to limit freedom of expression meet or do not meet the constitutional criteria for a law limiting the freedom of expression as provided in section 39(3) and 45(1) above mentioned. The laws are as follows:

Section 24 of Cybercrime (Prohibition, Prevention, Etc.) Act, 2015 which provides that:          

“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that -

(a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or

(b) he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act…

(2)Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network –

(a)to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person;

 (b)containing any threat to kidnap any person or any threat to harm the person of another, any demand or request for a ransom for the release of any kidnapped person, to extort from any person, firm, association or corporation, any money or other thing of value; or

(c)containing any threat to harm the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, to extort from any person, firm, association, or corporation, any money or other thing of value: commits an offence under this Act…”

Section 391(1) of the Penal Code for Northern Nigeria which provides as follows:

“whoever by words spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning a person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said, save in the cases hereinafter excepted, to defame that person.”

Section 391(2) provides for instances which are an exception to sub-section 1 above.

Section 393(1):

“Whoever, save as hereinafter expected, by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any false statement of fact, intending to harm or knowing or having reason to believe that such false statement of fact will harm the reputation of any person or class of persons or of the Government authority in the Northern Region shall be punished with imprisonment.

(2) It is not an offence under this section to make or publish in good faith a false statement of fact which the accused had reasonable grounds for believing to be substantially true and proof that he had such reasonable grounds shall lie on the accused.”

Section 394:

“Whoever prints or engraves any matter or prepares or causes to be prepared any record for the purpose of mechanical reproduction of any matter, knowing or having good reason to believe that such matter is defamatory of any person shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

Section 395:

“Whoever sells or offers for sale any printed or engraved substance containing defamatory matter or any record prepared for the purpose of the mechanical reproduction of defamatory matter, knowing that such substance or record contains such matter, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

The Criminal Code for Southern Nigeria also criminalises defamation. See sections 373 to 381 of the Criminal Code. See also chapter 7 of the Criminal Code which deals with sedition and the importation of seditious or undesirable publications. Chapter 7 contains offences such as publication of false news with intent to cause fear and alarm to the public. Section 59(1) provides that any person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that such statement, rumour or report is false is guilty of a misdemeanour and liable on conviction to imprisonment for three years. 

Furthermore Section 60  provides that any person  who,  without such justification  or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any  sign  or  visible  representation,  tending  to  expose  to hatred or contempt  in  the estimation  of  the  people  of  any  foreign  State  any  person exercising sovereign authority over that State is guilty of a misdemeanour, and is liable to imprisonment for two years. 

As can be read from above provisions, apart from section 24 of the Cybercrimes Act 2015, sections 391 and 393 of the Penal Code and sections 59 and 373 of the Criminal Code could be used to clamp down on a blogger or any person who posts contents considered to be defamatory or constitutes injurious falsehood under the Penal Code.

In 2012 Abbas Faggo was arrested and charged to court under section 393 of the Penal Code for the alleged Facebook publication, which the Attorney-General and Commissioner for Justice, Mr. Almustapha Suleiman described as “injurious falsehood and defamation to Yuguda’s (Bauchi State Governor) administration.”  Abbas Faggo was alleged to have posted comments on his Facebook account about monumental corruption in the state. He was alleged to have specifically commented on the funding of the wedding ceremony of the eldest son of Governor Isah Yuguda, Idris Yuguda, ostensibly with public funds.

In spite of the above many commentators while often condemning the provisions of section 24 of the Cybercrimes Act, 2015 as been unconstitutional often ignore the fact that even before the Cybercrimes Act, 2015 there was and there are still other laws which restrict the freedom of expression and they could be used to clamp down on bloggers and social media users who post content which the government considers to be critical of it.

The Supreme Court of India in May, 2016 in the case of Subramanian Swamy v. Union of India held that section 499 of the Indian Penal Code (IPC) which criminalizes defamation is constitutional and not a breach of freedom of expression. Section 499 of the IPC is the same and contains the exact wording as 391(1) of the Penal Code.

In that case the petitioners, Subramanian Swamy and Rahul Gandhi, argued that sections 499 and 500 of the IPC dealing with criminal defamation have an "inhibitive effect” on freedom of speech and expression, particularly political speech. The two leaders, who have been charged with criminal defamation under section 499 and 500 of the IPC for their political speeches contended that the colonial law enacted in the 19th century has become "unreasonable and arbitrary” in independent India and was continuing without debate or a test on its constitutionality.

The stand of the petitioners that defamation be treated as a "civil wrong” was opposed by the Government which advocated retaining sections 499 and 500 in the IPC, saying that criminal defamation works as deterrent against growing tendency to defame people through social media. While describing the penal provisions as "deterrent", the government had defended their retention on the grounds that while in other countries, defamation cases are decided very fast, in India it takes years even decades before they reach conclusion.

In another Indian case of Shreya Singhal and Ors. vs Union of India the Supreme Court of India was called upon to decide on the constitutionality of section 66A of the amended Information Technology Act of 2000 (which is similar; though not in exact words, but in effect or substance with portions of section 24 of the Cybercrimes Act). Section 66A defines the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction can fetch a maximum of three years in jail and a fine. The section specifically provides that:

"Any person who sends, by means of a computer resource or a communication device, —

(a)   any information that is grossly offensive or has menacing character; or

(b)  any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,

(c)   any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine."

In the case under reference two women were arrested by the Mumbai police in 2012 for comments on they posted on Facebook. The arrested women were released later on and the criminal cases against them dropped yet their arrests attracted widespread public condemnation. It was felt that the police had misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression.

The Supreme Court of India in declaring section 66A unconstitutional held that that the terms:

"annoying, offensive, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will" used in the section were vague and indefinite… If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or   “menacing”   are   so   vague   that   there   is   no   manageable standard by which a person can be said to have committed an offence or not to have committed an offence.  Quite obviously, a prospective offender of Section 66A and the authorities who are to   enforce   Section   66A   have   absolutely   no   manageable standard   by   which   to   book   a   person   for   an   offence   under Section 66A. This being the case, having regard also to the two English   precedents   cited   by   the   learned  Additional   Solicitor General, it is clear that Section 66A is unconstitutionally vague”.

The court further held that:

"Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered," the bench observed while striking down the law. "...We, therefore, hold that the section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over-breadth." 

Whereas the offence of criminal defamation has been held to be constitutional in India and section 66A which is similar to portions of section 24 of the Cybercrimes Act 2015, has been held to be unconstitutional also in India, it would be interesting to see how the Nigerian courts would decide on the constitutionality of sections 391(1), 393 of the Penal Code, sections 59 and 373 and of the Criminal Code and section 24 of the Cybercrimes Act, 2015 earlier stated if their constitutionality is challenged. The decision in the India cases may be highly persuasive to a Nigerian court deciding on the constitutionality of the Nigerian laws above mentioned.

The United Nations Special Rapporteur on freedom of expression, David Kaye on the 3^rd May 2016 in a speech to commemorate the World Press Freedom Day, said:

“Some governments target journalists, bloggers, political dissidents, activists and human rights defenders as ‘extremists’ or ‘terrorists’, criminalizing and detaining them, using legal systems to counter broad and unclear offences. The harm is felt not only by journalists but also by their audiences, the public that deserves the right to know and to access information of public interest. Freedom of expression plays a critical role in promoting equality and in combating intolerance, and the role the media, the Internet and other digital technologies play in keeping society informed is essential.”

It is hereby recommended that social media activists, human rights advocate and civil liberties organizations should avail themselves of the option of public interest litigation provided under the Fundamental  Rights  (Enforcement  Procedure)  Rules  2009  which has  drastically  increased  the potentiality of the public interest litigation as peoples’ tool against abuse of powers in  governance, to challenge the constitutionality of Nigerian laws especially those that have been highlighted in this article, which restrict or limit the freedom of expression guaranteed by the Constitution.

WILL THE DEATH OF PRIVACY GUARANTEE BETTER SECURITY OF LIVES AND PROPERTY FOR ALL OF US?

With every terrorist attack in the West legislators and law enforcement authorities call for laws (or amendment of extant laws) for increased surveillance of citizens. This they argue will enhance the capabilities of law enforcement authorities to prevent and where they occur, investigate terrorist attacks.

It has been reported here that: 

The federal government is taking another step it says would make the US homeland safer from terrorism. US border authorities are proposing that millions of tourists entering the country each year reveal their social media identities.

The proposal from US Customs and Border Protection, announced last week in the Federal Register, would add a line to the online or paper form that US-bound visitors must fill out if they don't have a visa and plan on staying for up to 90 days for vacation, business, or other affairs. The agency says travelers coming to the US under the Visa Waiver Program won't be forced to disclose their social media handles, but leaving it blank obviously could raise red flags.

Here's what will be asked: "Please enter information associated with your online presence—Provider/Platform—Social media identifier." 

It has also been reported that "Federal agents (in the US) are planting microphones to secretly record conversations."

Arstechnica also reported that:

“Russia's lower house of parliament, the State Duma, has approved a series of new online surveillance measures as part of a wide-ranging anti-terrorism law…As well as being able to demand access to encrypted services, the authorities will require Russia's telecom companies to store not just metadata, but the actual content of messages too, for a period of six months. Metadata alone must then be held for a total of three years, according to a summary of the new law on the Meduza site. Authorities will be able to access the stored content and metadata information on demand…the legislation still needs to be approved by Russia's upper house, the Federation Council, and signed by President Putin.”

Slowly and gradually our right to privacy is being be eroded. Nigerians may think this is only happening in the US but it is happening at home here in Nigeria too, for e.g. compelling mobile phone users to register their GSM lines and submit biometric data etc. before activation of the lines for use.

Furthermore “A PREMIUMTIMES investigation spanning months revealed that a Bulgarian digital surveillance company, Circles 3G, offered the technology with which the governors secretly violated the privacy of citizens, while federal government authorities, themselves vulnerable, looked away.”

See also the Facebook post by one James S. Gbudu claiming to monitor the internet with the hope of riding it of fake social media accounts being used to abuse Nigerians!

It may not be out of place to conclude that the future for privacy looks bleak! I therefore foresee a situation whereby little by little the right to privacy(online and possibly offline) will be gradually eroded until there is no more right to privacy most especially in the name of fighting terrorism and other crimes. This erosion of privacy will be further aided by the coming Internet of Things (IoT).

The question then is; will the DEATH of privacy guarantee better security of lives and property for all of us?

WHY WE SHOULD REJECT THE N10,000 WITHDRAWAL LIMIT PROPOSAL

It has been reported in the papers that “a proposal to limit the over the counter cash withdrawal by bank customers to N10,000 has been tabled before the Central Bank of Nigeria (CBN). The Sub-committee on Payments Systems and Infrastructure of the Bankers Committee last week sent the proposal to the CBN. The proposal was presented at the committee’s meeting but it is not clear whether it was considered. The CBN is expected to “give feedback on the request”.

The banks by the proposal want to further compel bank customers to use e-banking channels, e.g. ATMs, internet banking etc. However when there is a dispute involving transactions on any of those channels it takes a long time before they are resolved and customers often go through harrowing experiences before a resolution is reached. For instance in cases of ATM dispense errors (i.e. ATM fails to dispense cash but customer account is debited) involving the ATMs of two different banks, it takes sometimes over a month before there is a reversal of the debit and in some instances there is no reversal at all and the banks will go to court insisting that there was a withdrawal without providing conclusive evidence of such withdrawals like ATM camera footages as required by CBN guidelines. See for e.g. the cases of KUME BRIDGET ASHIEMAR vs. GUARANTYTRUST BANK PLC (GTB) & UNITED BANK FOR AFRICA (UBA) PLC, Suit No: MHC/198/14 and  BARR. TIMOTHY TION vs.FCMB LTD & UBA PLC. (Suit No. MHC/161/16), pending before the Benue State High Court of Justice, Makurdi.

Further evidence of how it takes long for ebanking disputes between banks and customers to be resolved can be found in my own case where I sent an email to the Central Bank of Nigeria’s (CBN's) Consumer Protection Department (cpd@cbn.gov.ng) over a disputed ATM withdrawal since December, 2015 and I did not get any response whatsoever from the Consumer Protection Department till date.

It is even doubtful if there are enough ATMs to service customers who will have to resort to ATM withdrawals if across the counter cash withdrawal is limited to N10,000.

I therefore, call on the CBN and bank customers to reject the proposal by Deposit Money Banks to limit over the counter cash withdrawal by bank customers to N10,000.

The following stories illustrate the suffering bank customers in Nigeria go through using e-banking channels especially ATMs:

·        ATM fraud: Customer threatens to sue GT Bank, demands

N100m damages

·        ATM Fraud … 13 Lagos Residents Lose N.7m in Two Months

·        How Kaduna residents lose huge sums to ATM fraudsters

·        Poor Handling Of ATM Fraud Cases Worries Customers

ATM NON-DISPENSE ERROR: CUSTOMER SUES GTB & UBA, CLAIMS N10M DAMAGES

A typical ATM dispense error is a situation where the machine debits a customer’s account without actually physically dispensing cash. In KUME BRIDGET ASHIEMAR vs. GUARANTY TRUST BANK PLC (GTB) & UNITED BANK FOR AFRICA (UBA) PLC, Suit No: MHC/198/14 being tried at the Benue State High Court, sitting in Makurdi, the plaintiff, Kume Bridget Ashiemar, in October 2013, attempted a total of five times(N20,000.00 thrice on 3/10/2013, N20,000.00 and N10,000.00 once on 4/10/2013) to withdraw money over two days totalling N90,000.00 at the ATM of UBA Plc. in North Bank, Makurdi. However, the ATM did not dispense cash on each attempt and displayed a message of insufficient funds yet her account was debited. She laid a complaint at her bank, GTB and requested for camera and video recordings of the transactions but none was provided and neither was she refunded the N90,000.00 In January 2014, three months later, she contacted a lawyer who wrote GTB but nothing came of the lawyer’s later.

Eventually she sued the banks and the banks in their defence are claiming that the ATM dispensed cash which was taken by her on each occasion she attempted to withdraw money on the dates mentioned above. UBA has provided ATM journal prints and transaction logs of the disputed transactions without providing visual evidence of cash dispense and pick up by Kume Bridget, to prove that the transactions were successful. The case is being tried at High Court No. 7 in the High Court of Justice of Benue State, Makurdi. The next adjourned date for the case is 27^th June, 2016.

It would be interesting to see how the court will decide the case as the same High Court No. 7 had in the case of VICTOR EJE V. UBA PLC Suit No. MHC/323/2010, awarded N500,000.00 general damages against UBA Plc in favour of the plaintiff, Victor Eje and also ordered the bank to refund the sum of N80,000.00 withdrawn from his account without his authority or mandate. The brief facts of the case are that Mr. Eje went to the bank on 30/10/2009 to withdraw N20,000.00 and he discovered he had only N1,639.00 in his account. He inquired as to why he had only N1,639.00 and he was informed that N80,000.00 was withdrawn from his account via ATM card on the ATM of Spring Bank, Ogiri Road, Enugu. Mr. Eje contended that he did not make the withdrawal neither did he authorize any person to do so with his ATM card. The bank on the other hand contended that the withdrawal was done by Mr. Eje or he was negligent and/or divulged his PIN to a third party which allowed such a third party to use the ATM card to make withdrawals. However the bank failed to prove its assertions or contentions and the court therefore held it liable for the withdrawal of the N80,000.00 since it could not prove that the withdrawal was authorized by Mr. Eje.

The Central Bank of Nigeria (CBN) in trying to check the hardship meted on bank customers due to non-dispense or partial dispense errors in 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.

The apex bank also 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.

Furthermore, the CBN through its Banking and Payment System Department in May, 2014, released the Guidelines for Card Issuance and Usage in Nigeria; which 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.”

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).