DOWNLOAD A COPY OF THE JUDGEMENT IN ATM DISPENSE ERROR CASE

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On the 24th of May, 2018 a Benue State High Court, sitting in Makurdi, delivered judgement in the case of of KUME BRIDGET v. GTBANK PLC & UBA PLC (SUIT No. MHC/198/14). A case that has been reported as the "First Nigerian Case on ATM Dispense Error". A copy of the judgement has been obtained and can be downloaded here and here. Please download, read and make your comments and suggestions in the comments section of this page or send them to timoteetion@gmail.com.

UPDATE AND MY INITIAL OPINION ABOUT THE JUDGEMENT IN KUME BRIDGET vs GTBANK PLC & UBA PLC

INTRODUCTION

A Benue State High Court of Justice, sitting in Makurdi, today the 24^th 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 2^nd 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 The Plaintiff claimed that on she had on 2^nd October, 2013 withdrawn money and her account balance showed N95, 213.07. However, when she attempted to withdrawn N20,000.00 only on 3^rd October, 2013 the machine displayed a message that she had insufficient funds.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 4^th 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 1^st Defendant (GTBANK Plc) on 8^th October, 2013 as 5^th and 6^th 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 2^nd Defendant and the ATM Camera footages to contend that the ATM of the 2^nd Defendant dispensed cash which was picked up by the Plaintiff. The 2^nd 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 2^nd 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 2^nd 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.

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."

NIGERIAN JUSTICES: MOVING WITH THE TIMES

In the case of Mrs Betty Darego v. A.G. Leventis (Nigeria) Ltd & 3 Ors, LER[2015] CA/L/481/2011, the Court of Appeal PER Y.B. NIMPAR, J.C.A held on the meaning of the word "PREPONDERATE" thus:

“Preponderate according to www.dictionary.com is a verb and its, original meaning is “to weigh more than” and its source is the latin word ‘praeponderare’ meaning “out weight”, “to exceed in force or power”. Preponderance would therefore mean greater weight, a sense of greater importance.”

Comments

In the above quote, it can be seen that the court used a dictionary available on the web: dictionary.com, to define the word "preponderate." It is good to note that our Lordships are utilizing the Internet to research and cite same as sources of information in their judgments. This is a welcome development and it's hereby suggested that such practice should be emulated and maintained.

Before now many a lawyer thought that judges, especially justices of  the Court of Appeal and Supreme Court were old men and women who were Luddites (one who is opposed to especially technological change) or technophobes (a person who fears, dislikes, or avoids new technology) but it appears the justices are now taking steps to change that perception and that is commendable.

This is hoping that lawyers too will take up the cue by His Lordship Nimpar J.C.A by carrying out research using the web and also citing web references or hyperlinks in their written briefs. I read some briefs filed by lawyers in the US and judgments from there as well and I see hyperlinks cited in support of arguments and submissions.

Difficulties

Citing web references in legal documents has its down side because of link rot. Link rot is created when a Web page is moved, taken down or reorganized. Clicking on a rotten link usually results in a 404 error, which includes a message that the page cannot be found. According to Tom Venetis:

"Link rot commonly refers to a situation in which a hyperlink that links to a document or an online site no longer leads to the site or content. Another related problem is reference rot where the hyperlink continues to work, but the content of the site the link refers to has changed, but does not tell a person where that site or document is now located. The problem in the same in both cases. Information that one is looking for is now not easily found, or cannot be found at all."

A study titled “Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010)", published in the Yale Journal of Law and Technology in 2013, found that nearly one-third of the websites cited by the U.S. Supreme Court were non-functioning, many of which linked to government or education domains.

Solutions

In the US, Michigan's Supreme Court archives all its cited links through Perma.cc, a crowd sourced link preservation site launched by the Harvard Library Innovation Lab. While anyone can put links on the Perma.cc server, they have to be renewed every two years in order to not expire. But links posted by universities, courts and journal editors stay permanently in the database.

There is also Webcite (http://www.webcitation.org/) which according to Wikipedia is: 

"an on-demand archiving service, designed to digitally preserve scientific and educationally important material on the web by making snapshots of Internet contents as they existed at the time when a blogger, or a scholar or a Wikipedia editor cited or quoted from it. The preservation service enables verifiability of claims supported by the cited sources even when the original web pages are being revised, removed, or disappear for other reasons, an effect known as link rot." 

WebCite is a non-profit consortium supported by publishers and editors, and it can be used by individuals without charge.

FAILED ATM TRANSACTION CASE: UBA WITNESS TESTIFIES, CASE ADJOURNED FOR ADOPTION OF FINAL WRITTEN ADDRESS

The Defence specifically, the 2^nd Defendant (UBA Plc.), closed their case today in the very important test case of KUME BRIDGET ASHIEMAR v GT BANK PLC. &UBA PLC. (SUIT No. MHC/198/14). The case involves a claim of failed ATM transaction as alleged by the plaintiff  and it is 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.

The Plaintiff sometimes in October, 2013 attempted severally to withdraw money from the ATM of 2^nd Defendant but according to the plaintiff the ATM failed to dispense cash nevertheless her account was debited. According to the defendants the withdrawal attempts were successful. Plaintiff disagreed and sued the Defendants.

The Plaintiff opened her case, testified and was cross-examined, while the 1^st Defendant opened their case on Thursday, 22^nd June, 2017 calling their sole witness who testified and was cross-examined. The case was then adjourned to 20^th July, 2017 for 2^nd defendant to call their own witness to testify. On 20^th July, 2017 the court did not sit. The case then suffered several adjournments between 20^th July, 2017 and 9^th November, 2017 owing the court going on its annual vacation and strike action by the Benue State civil servants.

However, today, 9^th November, 2017, the 2^nd Defendant proceeded to call her sole witness who testified and was cross-examined, after which the case for the Defence was closed. The case has now been adjourned to 21^st December, 2017 for adoption of final written address. After the adoption of final written address the case would be slated for judgment. Whatever the court decides will go a long way in developing Nigerian law with regards to failed ATM transactions.

UPDATE IN ATM DISPENSE ERROR CASE OF BARR. TIMOTHY TION v. FCMB LTD & UBA PLC

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 1^st defendant (FCMB Ltd) filed a preliminary objection which was overruled by the court. After close of pre-trial conference as required by the rules of court, the case was set for hearing. On the 18^th of October, 2017 the plaintiff opened and closed his case. The plaintiff testified and was cross examined by both defendants. The case was then adjourned to 13^th November, 2017 for both defendants to present their case with the calling of their own witnesses to testify and be cross examined by the plaintiff.

Keep a date with this blog for progress report of the case.

LEGAL ADVICE, PRISON VISITS AND INCARCERATION

In Attorney General of Lagos State v Keita (CA/L/477/2012)[2016] NGCA 87 (24 March 2016), the accused/respondent (a Nigerien) was arrested by the Police and arraigned before a magistrate court for the offence of manslaughter. He was remanded in prison custody following the order of the magistrate. He remained in prison custody for over 10 years without trial following which he sued the Commissioner of Police and Attorney General of Lagos State (appellant) for breach of his fundamental rights as provided by the constitution. The Commissioner of Police and the appellant did not file affidavit evidence countering the case of the respondent that he was detained in prison without trial for over 10 years for the offence of manslaughter. The High Court found in favour of accused/respondent and awarded N7m damages against the Commissioner of Police and the appellant jointly and severally. The N7 million award was enforced by garnishee proceedings against only the appellant. Thus appellant appealed against the decision arguing that:

“although the office of the Attorney-General occupies a very special position in the scheme of governance, cases brought to Court by the Police without forwarding duplicate case files with respect to them for the purpose of issuance of legal advice cannot be said to be within the constructive knowledge and control of the office of the Attorney-General.”

The appellant therefore called upon the Court of Appeal to overturn “the judgement of the high court holding it jointly responsible for the incarceration of the respondent as no duplicate case regarding the respondent’s case was forwarded to it by the commissioner of police.”

The respondent on the other hand argued that:

“…the provisions of the Administration of Criminal Justice Law of the Lagos State 2007 (ACJL 2007) and its successor, the Administration of Criminal Justice Law 2011 (ACJL 2011) which provide procedural rules for pending and fresh criminal prosecution in the Magistrate Courts and the High Courts of Lagos State place a burden on the appellant with certain ministerial responsibilities not only to undertake and take over criminal prosecution and/or discontinue such criminal prosecutions with respect to offences the Attorney-General of the State is authorised by law to prosecute, the appellant is further charged with the responsibility to monitor and control any remand proceedings for indictable offences in a Magistrate Court thus placing on the appellant the ministerial responsibility to intervene and discontinue remand proceedings in a Magistrate Court.”

The respondent submitted, that the appellant having failed to carry out its  duty as stated above, it was right for the trial court to have held appellant jointly liable for the incarceration of the respondent.

The court in deciding the appeal considered the following provisions of the relevant laws which are reproduced herein below:

Section 72(1) of ACJL 2011 (which is the same as Section 72 of ACJL 2007) provides that:

"(1) In any remand proceedings with respect to any indictable offence against a law before a Magistrate, the Attorney-General of the State may indicate to the Court either personally by himself, or through any of the officers in his chambers in writing, informing the Magistrate by way of legal advice through the prosecuting Police Officer or a Law Officer that the State intends that the proceedings shall be discontinued and thereupon the suspect shall immediately be discharged in respect of the offence."

Section 74 (1), (2) and (3) thereof states thus-

“(1) The Commissioner of Police shall forward all duplicate case files with respect to indictable offences to the office of the Attorney-General for the purpose of issuance of legal advice.

(2) The legal advice issued by the office of the Attorney-General with respect to such indictable offences or any person shall be conclusive.

(3) Notwithstanding the provisions of Subsections (1) and (2) of this section, the Attorney-General may request for duplicate files relating to any offence for the purpose of issuance of legal advice."

Section 264(1), (6) and (7) of ACJL 2011 (formerly Section 268(1), (6) and (7) of ACJL 2007) provides that:

"(1) Any person arrested for any offence triable on Information shall within a reasonable time of arrest be brought before a Magistrate for remand and the Magistrate shall have powers to remand such a person after examining the reasons for the arrests exhibited in the request form filed by the Police, and if satisfied that there is probable cause to remand such person pending legal advice of the Director of Public Prosecution or the arraignment of such person before the appropriate Court or Tribunal.

(6) At the expiration of the further order made pursuant to Subsection (5) above, the Magistrate shall issue a hearing notice to the Commissioner of Police and/or Director of Public Prosecutions and adjourn the matter in order to inquire as to the position of the case and for the Commissioner of Police and for Director of Public Prosecution to show cause why the person remanded should not be released.

(7) The Magistrate shall extend the order to remand only if satisfied that there is a good cause and that necessary steps have been taken to arraign the person before an appropriate Court of Tribunal.”

Having considered the above provisions the court held that:

“Section 74(3) of ACJL 2011 would not serve as the platform to impute constructive knowledge of the remand proceedings on the appellant on the footing that it is intended to empower the appellant, regardless of the nature of the offence, whether triable on information as stated in Section 72(1) of ACJL 2011, or not triable on information, to unlimited powers to call for the duplicate case file for legal advice; and, which ministerial power is, in my considered opinion, expected to be exercised only in cases the appellant is aware of the remand proceedings.”

The court further held that:

“…because there is no indication in the record that the Commissioner of Police or the person(s) acting under him forwarded the case diary or duplicate case file to the appellant for legal advice. It is also not indicated in the record that the appellant was in any way aware of the remand proceedings at the material time. Nor did the remanding Magistrate inform the appellant through the DPP of the remand proceedings as required by Section 264(6) of ACJL 2011. It follows logically and factually that the appellant was not cognizant of the pending remand proceedings.”

The court therefore concluded per Joseph Shagbaor Ikyegh, J.C.A. (delivering the Leading Judgment) that: “It is on the premise (supra) that I am of the modest opinion that the appellant should not have been found liable for the infringement of the respondents right to personal liberty in the circumstances of the case.”

COMMENTS
Chinwe Eugenia Iyizoba, J.C.A who concurred with the leading judgement, made a remark which may be considered as a subtle indictment on the system of criminal justice administration in Lagos State as at the relevant period (the over 10 years period during which the respondent was incarcerated without trial) when she stated that: “I thought prison visits by Chief Judges were supposed to fish out and take action in cases such as this. For these cases to have escaped their attention there might be need to review their procedure.” 

RE EMPLOYEES OF NIGERIAN BANKS AND THEFT OF CUSTOMERS' MONIES

In an earlier article: EMPLOYEES OF NIGERIAN BANKS AND THEFT OF CUSTOMERS' MONIES, I quoted a New York Times report thus:

"As concerns over identity theft and foreign cyber attacks rise, customers are largely in the dark about a growing threat just around the corner: bank tellers and managers with instant access not only to their critical personal information, but also to their cash.

Though much of the focus on bank fraud has been on sophisticated hackers, it is the more prosaic figure of the teller behind the window who should worry depositors, according to prosecutors, government officials and security experts."

The report further stated that the Manhattan District Attorney's office approximately files at least a case a month against a bank teller. This indicates that such cases of theft are now common place in Manhattan.

In the article, I also wondered about the scale or extent of theft of customer's monies by bank employees in Nigeria and concluded that the scale is unclear or unknown. I also cited in the article, two instances of bank employees in Nigeria pilfering customers’ funds. However, it appears there are more of such cases occurring and it seems the employees of Nigerian banks are trying to catch up with their colleagues in Manhattan. This seems so because of a report in the Punch. According to the spokesperson of the Special Fraud Unit of the Nigeria Police, ASP Lawal Audu as quoted in the report:

“The work of the network provider suspects was to assist the bankers to swap the SIM cards of the targeted bank customers so that they were unable to receive alerts of any transactions on their accounts within the period that money was stolen from their accounts.

The suspects, after successful withdrawals of the money, transferred the money into about 40 different accounts to avoid being detected. They carried out their operations at weekends and public holidays so as to evade being detected by the bank monitoring mechanisms or the owners of the accounts. They defrauded their victims to the tune of over N150m.”

This fraud story by the Punch is somewhat similar to the one reported in the Times of India. In that story a bank employee stole personal details of customers, got a police report indicating that the customers’ SIM cards were lost and then requested for a SIM cards from the network providers. He then transferred from those customers accounts and they could not get debit alerts sent to their phone numbers.

For more on bank employees in Nigeria stealing from customers’ account see the following:

Banker jailed 39 years for stealing N30m from dead customer-

http://punchng.com/court-jails-banker-39-years-stealing-n30m-dead-customer/

Banker arrested for withdrawing N50m from customers’ accounts- http://www.informationng.com/2013/12/police-arrest-banker-for-stealing-n50m.html

Banker accused of stealing customers’ N8.4m-

http://www.vanguardngr.com/2017/05/banker-accussed-stealing-customers-n8-4m/

Rogue bankers steal customers’ funds online-

http://www.businesstodayng.com/rogue-bankers-steal-customers-funds-online/

In view of the foregoing, it might not to be out of place to make a freedom of information request to the Nigeria Police and other relevant authorities for information on the number of bank employees standing trial and those convicted for theft of customers' funds or hacking into customers' accounts. This would enable one to have a better idea of the scale of such thefts or hacking of customers' accounts by bank employees in Nigeria.