Why The Court Of Appeal Decision In Moses V. Ecobank & Anor Does Not Open The Flood Gates For Actions On Failed ATM Transactions

By Oliver Omoredia

In the past days, significant attention has been given to the
decision of the Court of Appeal in the case of Moses Jwan
v. ECOBANK Nigeria Plc & Anor [2021]10 NWLR pt.449. Much
of the attention on the case has been drawn from the obiter dictum
per Aliyu JCA on the point that ” The ATM card
issued by a bank being akin to a cheque, must be honoured on
request once there is enough funds in the customer’s account, and
failure to do that means the bank is in breach of the duty of care
owed to its customer”. Unsurprisingly, that statement in the
judgement has been circulated as judicial authority on the point
that bank customers can sue Banks when they encounter frustrations
in the use of ATMs. This write-up however considers that inference
to be a stretch of the very narrow authority that is established in
the case of Moses Jwan v. ECOBANK & Anor. The write-up considers
the true basis for the decision in the case, why the Banks were
held liable and the mitigating steps which commercial banks can
take to avoid opening the flood gates of litigations in light of
the above authority.

FACTS OF THE CASE

The Appellant was the customer of Ecobank (the 1st respondent)
who issued him with an ATM card. He used the ATM card in the ATM of
UBA (the 2nd Respondent) to withdraw the sum of N10,000. The
machine continuously made the sound of counting money notes then
showed that the transaction was successful, but he did not get any
money from the machine even though was debited the amount with the
bank charges.

He complained to the officers of Ecobank and UBA but it did not
yield any positive result. Ecobank insisted that its record showed
that he was paid the money by the ATM. He therefore commenced an
action claiming the sum of N10,000, special damages of N100,020 and
general damages of N500,000.

The Appellant claimed that the events could not have occurred
without negligence on the part of the Respondents and he therefore
pleaded Res Ipsa Loquitur (that the facts speak for
themselves).

The trial Court decided against the Appellant on the basis that
he failed to establish that the Respondents were negligent. The
Court also held that the Res Ipsa doctrine was not
applicable.

Dissatisfied with the decision the Appellant appealed to the
Court of Appeal.

ARGUMENT OF COUNSEL AT THE COURT OF
APPEAL

In summary the Appellant’s Counsel argued that the Learned trial
Judge was wrong when he admitted the photocopy of the 2nd
respondent’s ATM journal which the Respondents claimed recorded the
ATM transaction as successful, because the original of the journal
was not produced and there was no proper foundation laid either in
its pleadings or in the evidence for the court to admit the
photocopy. He said the document failed to meet the requirements of
Section 82 and 84 of the Evidence Act.

He further argued that while the onus of proof in civil cases is
generally on the Plaintiff, Section 133(1) of the Evidence Act
raises a presumption from the pleadings in favour of the Plaintiff
and the Defendant has the task of discharging the initial burden of
proof. He therefore argued that the event was something the
Plaintiff could not explain and that was a situation which could
not have happened in the ordinary course of things without some
negligence from the Respondents. That was why he relied on the
doctrine of res ipsa loquitur in his pleadings.
Therefore, the Respondents had the duty to severally or jointly
demonstrate by evidence that what occurred was an accident and not
based on their negligence and that this should have been the
starting point of the case.

Importantly, the Respondents did not produce the image captured
by the ATM machine showing if the Appellant indeed took his money
after the alleged successful transaction and the two Respondents’
witnesses admitted that it was possible for a customer’s account to
be debited without the customer being paid. Therefore, evidence of
debit was not evidence of a successful transaction.

The 1^st Respondent however argued that the appellant
failed to prove that he was not paid the money from the ATM. They
relied on the statement of account of the Appellant which showed
that the Appellant was indeed paid and also relied on the Bank’s
journal showing the success of the transaction. The 1^st
Respondent contended that doctrine of res ipsa
loquitur as a cause of action was not available to the
Appellant who has failed to prove the material facts of his claims
of negligence. The 2^nd Respondent also similarly argued
that the Appellant had failed to plead and prove the particulars of
negligence alleged.

Determination of the Appeal

On whether the Banker’s journal was inadmissible for lack of
proper foundation for the admission of photocopy and the absence of
certification as a computer-generated evidence, the Court disagreed
with the Appellant and held that the document was admissible on the
basis of its relevance. According to the Court “the trial
Judge was right to be guided by relevancy of the document to the
fact in issue, at the point of tendering the exhibit 19, especially
in view of the testimony of the DW2 that he saw the original
document from which exhibit 19 as a copy was made and in view of
the provisions of section 89(h) and 90(e) of the Evidence Act. The
fact in issue before the trial court was whether or not the
appellant was paid the sum of N10,000 he requested from the ATM of
the 2nd respondent, and exhibit 19 is said to contain the record of
that transaction. It was therefore relevant and admissible in
evidence”.

However, while the Learned Justices of the Court of Appeal held
that the document was admissible, they however held that the trial
court ought not to have attached much probative value to the
exhibit because it was faded and could not be easily read.
According to the Court:

“DW2 clearly testified that exhibit 19 is “faded away”.
When something is said to have faded away, it cannot be seen,
because the ordinary dictionary meaning of ‘faded’ is disappeared.
It is therefore a mystery how the same witness who said the exhibit
he was tendering had faded away could still “read” the document
contrary to his claim. It is not logical to read a document that
has faded away, even if one has microscopic eyes, which no human
possesses.

Regrettably, the learned trial Judge did not consider
this crucial piece of evidence regarding the legibility of exhibit
19, which was clearly stated by the witness through whom it was
admitted in evidence. It is my view that a document that has faded
away, cannot be ascribed any probative value. It
is worthless piece of paper and it is hereby expunged from the
record of appeal”

Opinion

With due respect to the Learned Justices of the Court of Appeal,
it is difficult to see how Exhibit 19 was held by the Court to have
been properly admitted, but expunged because the trial court gave
significant probative value to the said evidence. One would expect
that it is evidence which is found to have been inadmissible and
improperly admitted by the trial court that should be expunged from
the records of court. See. ORISA v. STATE (2018) LPELR-43896(SC)
and MAGAJI v. OGELE (2012) LPELR-9476(CA). Hence, the Learned
Justices of the Court of Appeal could have determined that the
Exhibit could not attract significant probative value, without
expunging same from the record. It is trite that worthless
documents cannot have any important influence on the result of a
case. See: Kraus Bright-v. Ordani (supra): Onochie v. Odogwu
(supra) at page 65.” Per ABDU ABOKI, JCA (Pp 27 – 27 Paras E – F)
See also UNITY BANK PLC v. IDEMUDIA (2016) LPELR-40823(CA).

On whether the doctrine of Res Ipsa
Loquitur was applicable, the Court held that the
Appellant was entitled to plead Res Ipsa Loquitur.
According to the Court:

The testimony of the DW1 showed that the 1st respondent did not
doubt the complaint of the Appellant, since there were times that
such occurrences occur. It is also apparent that
the only investigation it carried out or relied upon is the
statement of account of the appellant (exhibit 18) that recorded
the transaction as successful. However as posited by the
learned appellant’s counsel and I totally agree with him, the
recording of the transaction as successful by both the ATM and his
bank account was not in issue before the trial court. What was in
issue and indeed the complaint of the appellant both before the
trial court and in this appeal was that his account was debited
without the requested cash paid to him and he did not know how that
could happen without the negligence of the respondents. Therefore,
the 1st respondent’s reliance on the statement of account as its
investigation to show that the transaction was successful was a
non-starter.

What was required to discharge the
presumption of negligence against the 1st respondent or its
officers is an explanation of how that could have happened without
its negligence or failure of duty of care owed to the appellant.
This is especially so because its witness DW1 admitted that there
are situations where the ATMs debit a customer’s account without
paying him the cash requested, which was what the appellant
complained of. Indeed, the evidence of the 1st respondent only
supported and strengthened the case of the appellant of negligence
against it. The effect of this is that the1st respondent did not
rebut the presumption of negligence against it in this
case.

The Court therefore found in favour of the Appellant and granted
the reliefs sought.

CONCLUSION

As seen from the above, the Court did not find against the
Respondent Banks because an ATM card is like a cheque which must be
honoured when the account holder has sufficient credit. No! That
was an obiter raised by the Learned Justice of the Court of
Appeal.  The decision was more in line with social justice,
which imputes a fiduciary responsibility on the bank towards its
customers. Indeed, the Banks failed woefully in the lackluster
treatment of the complaint of their customer, and it was that wrong
that the Court sought to remedy!

Therefore, it is not every failed transaction that can be basis
for claim of damages on the above authority. To come within this
decision the following must be established:

1. The transaction must have failed without explanation. Hence,
   where an ATM machine shows an error message like “User or Switch
   inoperative” or other error messages, a claim cannot be brought in
   reliance on the above authority.
2. The transaction failure must have not been rectified within
   reasonable time. Hence, where the account is debited and the money
   is reversed within a few days, the above authority will not be
   basis for action.
3. The officers of the Bank must have not rendered reasonable
   explanation and remedy after a reasonable time.

On the part of the Banks, the authority is also incisive on the
need to preserve evidence of transactions at ATM machines in order
to verify claims of this nature. Image of the Customer taking his
cash from the machine was all that was required to establish the
claim of the Respondents. In totality, the case is a good authority
which will doubtlessly help the Nigerian Banking System live up to
a higher standard than what currently obtains.

By Oliver Omoredia

In the past days, significant attention has been given to the
decision of the Court of Appeal in the case of Moses Jwan
v. ECOBANK Nigeria Plc & Anor [2021]10 NWLR pt.449. Much
of the attention on the case has been drawn from the obiter dictum
per Aliyu JCA on the point that ” The ATM card
issued by a bank being akin to a cheque, must be honoured on
request once there is enough funds in the customer’s account, and
failure to do that means the bank is in breach of the duty of care
owed to its customer”. Unsurprisingly, that statement in the
judgement has been circulated as judicial authority on the point
that bank customers can sue Banks when they encounter frustrations
in the use of ATMs. This write-up however considers that inference
to be a stretch of the very narrow authority that is established in
the case of Moses Jwan v. ECOBANK & Anor. The write-up considers
the true basis for the decision in the case, why the Banks were
held liable and the mitigating steps which commercial banks can
take to avoid opening the flood gates of litigations in light of
the above authority.

FACTS OF THE CASE

The Appellant was the customer of Ecobank (the 1st respondent)
who issued him with an ATM card. He used the ATM card in the ATM of
UBA (the 2nd Respondent) to withdraw the sum of N10,000. The
machine continuously made the sound of counting money notes then
showed that the transaction was successful, but he did not get any
money from the machine even though was debited the amount with the
bank charges.

He complained to the officers of Ecobank and UBA but it did not
yield any positive result. Ecobank insisted that its record showed
that he was paid the money by the ATM. He therefore commenced an
action claiming the sum of N10,000, special damages of N100,020 and
general damages of N500,000.

The Appellant claimed that the events could not have occurred
without negligence on the part of the Respondents and he therefore
pleaded Res Ipsa Loquitur (that the facts speak for
themselves).

The trial Court decided against the Appellant on the basis that
he failed to establish that the Respondents were negligent. The
Court also held that the Res Ipsa doctrine was not
applicable.

Dissatisfied with the decision the Appellant appealed to the
Court of Appeal.

ARGUMENT OF COUNSEL AT THE COURT OF
APPEAL

In summary the Appellant’s Counsel argued that the Learned trial
Judge was wrong when he admitted the photocopy of the 2nd
respondent’s ATM journal which the Respondents claimed recorded the
ATM transaction as successful, because the original of the journal
was not produced and there was no proper foundation laid either in
its pleadings or in the evidence for the court to admit the
photocopy. He said the document failed to meet the requirements of
Section 82 and 84 of the Evidence Act.

He further argued that while the onus of proof in civil cases is
generally on the Plaintiff, Section 133(1) of the Evidence Act
raises a presumption from the pleadings in favour of the Plaintiff
and the Defendant has the task of discharging the initial burden of
proof. He therefore argued that the event was something the
Plaintiff could not explain and that was a situation which could
not have happened in the ordinary course of things without some
negligence from the Respondents. That was why he relied on the
doctrine of res ipsa loquitur in his pleadings.
Therefore, the Respondents had the duty to severally or jointly
demonstrate by evidence that what occurred was an accident and not
based on their negligence and that this should have been the
starting point of the case.

Importantly, the Respondents did not produce the image captured
by the ATM machine showing if the Appellant indeed took his money
after the alleged successful transaction and the two Respondents’
witnesses admitted that it was possible for a customer’s account to
be debited without the customer being paid. Therefore, evidence of
debit was not evidence of a successful transaction.

The 1^st Respondent however argued that the appellant
failed to prove that he was not paid the money from the ATM. They
relied on the statement of account of the Appellant which showed
that the Appellant was indeed paid and also relied on the Bank’s
journal showing the success of the transaction. The 1^st
Respondent contended that doctrine of res ipsa
loquitur as a cause of action was not available to the
Appellant who has failed to prove the material facts of his claims
of negligence. The 2^nd Respondent also similarly argued
that the Appellant had failed to plead and prove the particulars of
negligence alleged.

Determination of the Appeal

On whether the Banker’s journal was inadmissible for lack of
proper foundation for the admission of photocopy and the absence of
certification as a computer-generated evidence, the Court disagreed
with the Appellant and held that the document was admissible on the
basis of its relevance. According to the Court “the trial
Judge was right to be guided by relevancy of the document to the
fact in issue, at the point of tendering the exhibit 19, especially
in view of the testimony of the DW2 that he saw the original
document from which exhibit 19 as a copy was made and in view of
the provisions of section 89(h) and 90(e) of the Evidence Act. The
fact in issue before the trial court was whether or not the
appellant was paid the sum of N10,000 he requested from the ATM of
the 2nd respondent, and exhibit 19 is said to contain the record of
that transaction. It was therefore relevant and admissible in
evidence”.

However, while the Learned Justices of the Court of Appeal held
that the document was admissible, they however held that the trial
court ought not to have attached much probative value to the
exhibit because it was faded and could not be easily read.
According to the Court:

“DW2 clearly testified that exhibit 19 is “faded away”.
When something is said to have faded away, it cannot be seen,
because the ordinary dictionary meaning of ‘faded’ is disappeared.
It is therefore a mystery how the same witness who said the exhibit
he was tendering had faded away could still “read” the document
contrary to his claim. It is not logical to read a document that
has faded away, even if one has microscopic eyes, which no human
possesses.

Regrettably, the learned trial Judge did not consider
this crucial piece of evidence regarding the legibility of exhibit
19, which was clearly stated by the witness through whom it was
admitted in evidence. It is my view that a document that has faded
away, cannot be ascribed any probative value. It
is worthless piece of paper and it is hereby expunged from the
record of appeal”

Opinion

With due respect to the Learned Justices of the Court of Appeal,
it is difficult to see how Exhibit 19 was held by the Court to have
been properly admitted, but expunged because the trial court gave
significant probative value to the said evidence. One would expect
that it is evidence which is found to have been inadmissible and
improperly admitted by the trial court that should be expunged from
the records of court. See. ORISA v. STATE (2018) LPELR-43896(SC)
and MAGAJI v. OGELE (2012) LPELR-9476(CA). Hence, the Learned
Justices of the Court of Appeal could have determined that the
Exhibit could not attract significant probative value, without
expunging same from the record. It is trite that worthless
documents cannot have any important influence on the result of a
case. See: Kraus Bright-v. Ordani (supra): Onochie v. Odogwu
(supra) at page 65.” Per ABDU ABOKI, JCA (Pp 27 – 27 Paras E – F)
See also UNITY BANK PLC v. IDEMUDIA (2016) LPELR-40823(CA).

On whether the doctrine of Res Ipsa
Loquitur was applicable, the Court held that the
Appellant was entitled to plead Res Ipsa Loquitur.
According to the Court:

The testimony of the DW1 showed that the 1st respondent did not
doubt the complaint of the Appellant, since there were times that
such occurrences occur. It is also apparent that
the only investigation it carried out or relied upon is the
statement of account of the appellant (exhibit 18) that recorded
the transaction as successful. However as posited by the
learned appellant’s counsel and I totally agree with him, the
recording of the transaction as successful by both the ATM and his
bank account was not in issue before the trial court. What was in
issue and indeed the complaint of the appellant both before the
trial court and in this appeal was that his account was debited
without the requested cash paid to him and he did not know how that
could happen without the negligence of the respondents. Therefore,
the 1st respondent’s reliance on the statement of account as its
investigation to show that the transaction was successful was a
non-starter.

What was required to discharge the
presumption of negligence against the 1st respondent or its
officers is an explanation of how that could have happened without
its negligence or failure of duty of care owed to the appellant.
This is especially so because its witness DW1 admitted that there
are situations where the ATMs debit a customer’s account without
paying him the cash requested, which was what the appellant
complained of. Indeed, the evidence of the 1st respondent only
supported and strengthened the case of the appellant of negligence
against it. The effect of this is that the1st respondent did not
rebut the presumption of negligence against it in this
case.

The Court therefore found in favour of the Appellant and granted
the reliefs sought.

CONCLUSION

As seen from the above, the Court did not find against the
Respondent Banks because an ATM card is like a cheque which must be
honoured when the account holder has sufficient credit. No! That
was an obiter raised by the Learned Justice of the Court of
Appeal.  The decision was more in line with social justice,
which imputes a fiduciary responsibility on the bank towards its
customers. Indeed, the Banks failed woefully in the lackluster
treatment of the complaint of their customer, and it was that wrong
that the Court sought to remedy!

Therefore, it is not every failed transaction that can be basis
for claim of damages on the above authority. To come within this
decision the following must be established:

1. The transaction must have failed without explanation. Hence,
   where an ATM machine shows an error message like “User or Switch
   inoperative” or other error messages, a claim cannot be brought in
   reliance on the above authority.
2. The transaction failure must have not been rectified within
   reasonable time. Hence, where the account is debited and the money
   is reversed within a few days, the above authority will not be
   basis for action.
3. The officers of the Bank must have not rendered reasonable
   explanation and remedy after a reasonable time.

On the part of the Banks, the authority is also incisive on the
need to preserve evidence of transactions at ATM machines in order
to verify claims of this nature. Image of the Customer taking his
cash from the machine was all that was required to establish the
claim of the Respondents. In totality, the case is a good authority
which will doubtlessly help the Nigerian Banking System live up to
a higher standard than what currently obtains.