CASE DIGEST - BANKER – CUSTOMER: FAILURE TO PAY AN ATM REQUEST IS A BREACH OF DUTY OF CARE BY THE BANK.

MR. MOSES G. JWAN v. ECOBANK NIGERIA PLC; UNITED BANK FOR AFRICA PLC

COURT OF APPEAL (NIGERIA)
(LAGOS DIVISION)

(MSHELIA; HASSAN; ALIYU, JJ.CA)

Mr. Jwan (the Appellant), was a customer of the Respondents who are both commercial banks. While the 1st respondent was the appellant’s primary bank with which he had an account where his money was lodged, the 2nd respondent is the owner of an Automated Teller Machine (ATM) by which it offered banking services to the public including the appellant, on commission of N100 per transaction. The appellant used his ATM card issued to him by the 1st respondent in the ATM of the 2nd respondent to request for money. His account was debited with the sum of N10,000 as the money withdrawn and N100 as a service charge, but no money was dispensed to him. The appellant immediately reported to the officers of both respondents when the ATM debited his account without paying him the money. His complaint to the officers of the respondents did not yield any positive results. The 1st respondent claimed that their record showed that the appellant was paid the money by the ATM. This aggrieved the appellant and he, therefore, instituted an action against the respondents at the High Court of Plateau State. e appellant claimed against the respondents for the sum of N10,000(Ten Thousand Naira) which was debited from his account but which he was not paid. He also claimed special and general damages.

At the trial, the appellant pleaded res ipsa loquitur and claimed he could not explain how his account could be debited by the 2nd respondent’s ATM though the money was not dispensed to him. He tendered exhibit 18 which was his statement of account showing he was debited with the sum of N10,000 as the money withdrawn and N100 as the service charge for the transaction. The respondents denied the appellant’s claim that they were negligent. They insisted that by their records, the 2nd respondent’s ATM dispensed the sum of N10,000. They pleaded and tendered evidence.

In its judgment, the trial court held that the appellant could not rely on the doctrine of res ipsa loquitur. e court also held that the appellant failed to discharge the burden of proof on him with regard to his case. It therefore dismissed the appellant’s claims.