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 He entered the amount of N8, 000.00 and the ATM partially released cash but before he could pick it up, the cash was retracted by the ATM.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) Operations in 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. UBA PLC 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).