Thursday, May 24, 2018 03.35PM / Timothy Tion*
A Benue State High Court of Justice, sitting in Makurdi, today the 24th of May, 2018, delivered judgment in the case of KUME BRIDGET ASHIEMAR v. GTBANK PLC & UBA PLC Suit No. MHC/198/14. over a dispense error suit i.e. a situation where the machine debits a customer’s account without actually physically dispensing cash.
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.
On Thursday, June 02, 2016, the author had offered his initial thoughts on what the case meant to the ecosystem when he posited that
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 The Plaintiff claimed that on she had on 2nd October, 2013 withdrawn money and her account balance showed N95, 213.07. However, when she attempted to withdrawn N20,000.00 only on 3rd October, 2013 the machine displayed a message that she had insufficient funds.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. The ATM did not dispense cash on each attempt and displayed a message of insufficient funds yet her account was debited
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. 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 was tried at High Court No. 7 in the High Court of Justice of Benue State, Makurdi.
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.
Noteworthy, the ATM did not dispense cash on each attempt and displayed a message of insufficient funds yet her account was debited
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.
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.
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?
Solution/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.
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."
Timothy Tion, naijacyberlawyer attended the Benue State University, Makurdi and Nigeria Law School respectively. He has an avid interest in the intersection of law and information and communications technology or techno-legal issues. View Complete Profile Follow on Twitter @eekabadcrane or Timothy
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