CHUKWUDEME v. U.B.A PLC & ANOR (2020)

CHUKWUDEME v. U.B.A PLC & ANOR

(2020)LCN/14785(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/AW/316/2014

RATIO

EVIDENCE: BURDEN OF PROOF IN CIVIL MATTERS

It is trite law that in civil matters, a party who will loose if certain facts are not proved bear the burden of proving those facts. In other words, in law of evidence if burden of proof is on a party who fails to call evidence, then the issue must be decided against him. The legal maxim is: He who assert must prove. The proof lies upon him who affirms, not upon him who denies, since by nature of things he who denies a fact cannot produce any proof. See Section 133 of the Evidence Act; IDEHEN v. OLAYE (1991) 5 NWLR (pt.191) 344 AT 361. In OYOVBIARE v. OMAMURHONU (2001) FWLR (pt. 68) 1129, the Supreme Court, per OGWUEGBE, JSC held thus:
“In civil cases, the general rule is that the burden of proof rests upon that, whether plaintiff or defendant, who substantially asserts the affirmative before evidence is gone into. This rule is clearly stated by ESO, JSC in TEWOGBADE v. AKANDE (1968) NWLR 404 at 408 thus:

“The position therefore, is this, in a civil case, the burden of proof lies on the person who would fail, assuming no evidence has been adduced on either side. Further, in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of those facts. Once that party produces the evidence, that would satisfy the jury, then the burden shifts on the party against whom judgment would be given if no evidence were produces the evidence, that would satisfy the jury, then the burden shifts on the party against whom judgment would be given if no more evidence were adduced…”
Thus where particular facts are in issue then the burden preponderates until it rests on the party upon whom judgment would be given if that party did not prove those facts. In other words, the burden may shift depending on how the scale of justice preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all, or no more evidence as the case may be, were given on either side. See IROAGBARA v. UFOMADU (2009) 5 – 6 S.C. (pt. 1) 83 at 94. PER GYARAZAMA SANGA, J.C.A.

EVIDENCE: WHO IS AN EXPERT

It is trite law that an expert is a person qualified to speak with some amount of authority by reason of his special training, skill mastery or familiarity with the subject matter in question. See RABIU v. AHMADU (2013) 2 NWLR (pt.1337) 36 at 52; A. – G, FEDERATION v. ABUBAKAR (2007) 10 NWLR (pt. 1041) 1 at 82, (2007) 4 S.C. (PT. II) 62 at 247. PER GYARAZAMA SANGA, J.C.A.

Before Our Lordships

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

MARYROSE CHUKWUDEME APPELANT(S)

And

1. UNITED BANK FOR AFRICA PLC 2. MR. JUDE OKWOR RESPONDENT(S)

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Appellant as Plaintiff instituted Suit No. 0/43/2010 against the Respondents as Defendants before the High Court of Anambra State, Onitsha Judicial Division, holden at Onitsha, A.O. Okuma J. presiding via a Writ of Summons and Statement of Claim dated 8th April, 2010 seeking for the following:
1. The sum of N201,105…. being the sum of money converted from her saving account on the 22nd day of December, 2008.
2. The sum of N136,700…. Being the sum of money converted from her savings account on the 23rd day of December, 2008.
3. The sum of N14,100…. Being the sum of money converted from her savings account on the 16th day of February, 2009.
4. 10% interest per month on each of the sums of money in paragraphs 1-3 commencing on the date of conversion to date of Judgment.
5. 10% interest per month on each of the sums of money in paragraphs 1-3 from the date of Judgment till the whole sum is liquidated or as assessed by this honourable Court.
6. N500,000 General damages for Negligence.
7. N500,000 General damages for conversion

N500,000… General damages for breach of contract.
9. N1 Million cost of this action or as assessed by the Court.
(page 9 of the record of appeal).

The Defendants filed a statement of Defence containing 27 paragraphs on the 28/06/2010 wherein they traversed the pleadings by the plaintiff seriatim. (pages 52 – 55 of the Records).

Pleadings having been filed and exchanged, the matter went to trial. The Appellant entered the witness box and testified as PW1 on 6th June, 2013. She adopted her written deposition on oath, testified in chief and tendered documents which were marked as Exhibits A, B, C and D respectively. Learned counsel to the Defendants objected to the tendering of the statement of Account dated 16th February, 2010 by PW1. Learned trial Judge marked it as Exhibit ‘A’ with a caveat that he will consider and pronounced on the admissibility of the document in his judgment. He overruled the objection by the learned defence counsel at page 12 of his judgment (page 172 of the Records) and marked the document as Exhibit ‘A’. PW1 was then cross-examined by learned counsel to the defendant

then the plaintiff closed her case.

The defendants also called one witness. DW1 is the 2nd Defendant. He testified on 3rd July, 2013. While leading the witness during examination-in-chief, Learned counsel to the respondents tendered a document titled; Guidelines on Transitions Switching Services”. It is a document issued by the Central Bank of Nigeria. Learned counsel to the plaintiff objected to the admissibility of the document on the basis that it is a photocopy of a certified true copy of a public document. The learned trial Judge also held that he will encompass his ruling as to the admissibility of the document in his judgment. He did so at page 12 of his judgment. He overruled the objection and admitted the document in evidence and marked it as Exhibit E. (page 172 of the Records). DW1 was cross-examined by learned counsel to the plaintiff and the Defendants closed their case.

The learned trial Judge ordered parties to file their respective final Written Addresses and adjourned the matter to 14th November, 2013 for adoption. On that date, learned counsel adopted their respective briefs and the learned trial judge adjourned to 16th

December, 2013 for judgment. In his judgment (pages 161 – 175 of the Records), the learned trial Judge, after evaluating the oral and documentary evidence reached his decision and pronounced thus:
“By article 1. 5. 4 of the said Central Bank of Nigeria Guidelines on Transitions Switching Services tendered as Exhibit E it is clear that banks responsibility or liability for fraud resulting from the use of ATM Card is limited to “up to the moment of issuance” of it. Once it is issued to a customer, the responsibility for fraud resulting from using the card passes to the holder. The plaintiff did not deny that the ATM Card was not issued to her. She is therefore liable by the provisions of the said guidelines. It is further found that, the plaintiff failed to provide evidence at least by tendering the Central Bank of Nigeria guideline that limited the number of withdrawals per day and without prove of it this Court cannot safely hold that the defendant bank was negligence (sic) in allowing withdrawals above the limits placed.

Consequent upon the findings above is the considered view of this Court that the plaintiff’s case is

not proved. It is hereby dismissed. No order as to cost.”

The plaintiff was aggrieved with this decision by the lower Court. Her counsel filed a Notice and Grounds of appeal. (Pages 176 – 181 of the Records).

The Appellant’ Brief of Argument was settled by K. K. Izuogu Esq. It is dated 16thMay, 2016, filed and served on 19th June, 2017. He also filed a Reply Brief on 26/2/2018. Learned counsel to the Appellant formulated two issues for determination as follows:
1. Whether the trial Court was right when it held that the Appellant failed to prove her case against the respondents in view of totality of the evidence led in this case. (Grounds 1, 2, 5 and 6).
2. Whether the trial Court was right in dismissing the Appellant’ suit without determining whether the duties imposed on the respondents under the relevant laws to safeguard all sums of money in Appellant’s account have either been discharged or breached. (Grounds 3, 4 and 7).

The Respondents brief was prepared by Ogochukwu Onyekwuluje Esq. It was filed on 4th August, 2017 but deemed as properly filed and served on 13th February, 2018. Learned counsel also

formulated two issues for determination as follows:
1. Whether the trial Court was wrong when it held that Appellant did not discharge the burden placed on her in proof of the fact that the withdrawals were not made with the use of her ATM card or her personal Identification Number known to her alone.
2. Whether the Appellant proved that the Respondents were negligent in the operation of her account.

I will adopt the issues canvassed by the Appellant in determining this appeal.

Before I delve into considering the issues formulated by the parties, I will narrate the brief facts that gave rise to filing this suit. The Appellant is a customer of the 1st Respondent by virtue of the saving account No. 02400520082735 which she opened and operates with the said 1st Respondent on 18/5/2007 she lodged into her account the sum of N332,216 thus she had a credit balance of N432,510.12. That as a customer of the 1st Respondent she was encouraged to obtain and Automated Teller Machine (ATM) Card which can enable her withdraw money from her account even after banking hours by one Miss Efe Akpomena a staff of the said 1st Respondent. That she applied for

and was issued the ATM Card enclosed in an envelope containing a personal Identification Number (PIN) known only to her. That she read and understood the instructions in the envelop and was further directed on how to use the ATM Card. That she went to the ATM machine in the 1st Respondent’s premises and changed the default PIN to her secret PIN. That the said ATM machine accepted the change enabling her to withdraw N5,000.00 leaving a credit balance in her account of N414,026.32. That thereafter she never used the ATM Card to make any withdrawal, but kept the card safe and secure in her custody.

That on 22/12/2008, a total of ten (10) withdrawals were purportedly made from her account contrary to the instruction she was given that she can make only three (3) withdrawals of not more than N60,000.00 per day. That the ten withdrawals caused her account to be debited the sum of N201,105.00. That on 23/12/2008 another seven (7) withdrawals were made from her account debiting the account of the sum of N136,700.00. That another withdrawal of the sum of N14,100 was made from a ATM machine located at Ihiala leaving her account with a paltry sum of 1,181.66.

The Appellant alleged that the Respondents did not inform her by short message system (SMS) notification or alert or even a call on these withdrawals. That she wrote to the 1st Respondent informing it of these unauthorized withdrawals, via a letter dated 16/2/2009. That on 14/8/2009 (six months later) the 1st Respondent replied alleging that from their investigation these unauthorized withdrawals were perpetrated by fraudsters thus denied liability.

The case of the 1st Respondent is that the Appellant is their customer operating the said saving account. They admitted that as at 18/5/2007 the credit balance in the Appellant’s account stood at N432,510.00. That the Appellant obtained and accepted the terms and conditions accompanying the operation of the ATM Card before using it thus exonerating the 1st Respondent from liability for any loss she suffered. That the Appellant bears responsibility for any fraud resulting from using their ATM Card and relied on the Central Bank of Nigeria Guidelines on Transaction Switching Services (which was marked as Exhibit E). The 1st Respondent also denied that the Appellant complied with the

instructions on the use of the ATM Card. That the withdrawals from the Appellant’s account were made with her ATM Card since she is the only one that knew the personal identification number. That she did not subscribe to the SMS alert on her phone.

Issue 1 raised and argued by the Appellant is:
Whether the trial Court was right when it held that the appellant failed to prove her case against the respondent in view of totality of the evidence led in this case.

In his submission while arguing this issue learned counsel to Appellant quoted the holding by the learned trial Judge at page 174 of the record of appeal and page 14 of his judgment where he stated thus:
“Before this Court the plaintiff in this case failed to prove that a person is capable of withdrawing money from her account without using her ATM Card from ATM Machines. This Court is constrained to hold that without prove availed by the plaintiff that withdrawal made from the plaintiff’s account through ATM Machines were not made with the plaintiff’s card.”

Learned counsel to the Appellant faulted this holding by the learned trial Judge on the basis

that the burden envisaged by the trial Court is not on the Appellant but on the 1st Respondent. That since the Appellant pleaded and led evidence of lodgments of the sums in issue with the 1st Respondent, which the said 1st Respondent admitted, then the onus of proof ought to shift on the respondent to prove who and how they paid the said sums in their custody by tendering evidence like acknowledgment receipt, CCTV footages, dates and time of the transaction etc. That the 1st Respondent did not tender such evidence. Cited: UNITED BANK FOR AFRICA PLC & ANOR. V. JARGABA (2007) II NWLR (pt. 1045) 247 where the apex Court held thus:
“The 2nd Appellant having admitted that the payment was made to the 1st Appellant, there will no longer be a burden to prove what has been admitted by the Appellants. See ONOBRUCHERE & ANOR. V. ESEGINE (1986) 2 S.C. 385 at P. 397. The onus of proof now shifted on the Appellants squarely to show that they had no obligation to pay the balance of the money owed by them.”

He submitted further that the learned trial Judge failed to evaluate these evidence to make proper finding thereof. That he rather erred by

placing the burden of proof where none-exists. That the lower Court also failed to make a finding of fact on the respondents’ admission in their amended statement of defence (paragraph 24 at page 55 of the Record). That risks of loss of plaintiff’s funds are borne by their insurance company but submitted that it does not cover ”where the plaintiff withdraw her own money.” That the burden of first proving the existence or non-existence of a fact that it was the Appellant who withdraw her money lies on the respondents against whom the judgment of the Court would be given if no evidence is produced on either side. That the 1st respondent did not adduce evidence to show that it was the Appellant who withdrew her money and so she is liable. That pleadings cannot constitute evidence and the 1st respondent who does not give evidence to support its pleading or challenge the evidence of the Appellant, is deemed to have accepted and rested its case on the facts adduced by the appellant notwithstanding its general traverse. Cited IFETA v. S.P.D.C. NIG LTD (2006) & NWLR (pt. 983) 585; BASHEER v. SAME (1992) 4 NWLR (pt. 236) 491;

UWEGBA v. A.-G., BENDEL STATE (1986) 1 NWLR (pt. 16) 303.

That since the money deposited with the 1st respondent and the duty to secure same is within its control, then the said 1st respondent bear the burden of proving that it was the Appellant that was paid her money in line with their mandate. That having wrongly placed the onus of proof on the Appellant, the conclusion by the trial Court that “the plaintiff failed to prove that a person is capable of withdrawing money in her account without using an ATM Card” ought to have been shifted on to the 1st Respondent since it is a burden which it failed to discharge. Cited this Court’s decision. In OGBORU v. UDUAGHAN (2010) 2NWLR (pt. 1232) 538 at 589-590 paragraphs F – A. That the pleading by the Appellant at paragraph 17 of her statement of claim that she never made any further withdrawals by means of her ATM Card is a negative averment that shifts the burden of prove on the 1st respondent to produce convincing evidence of further withdrawals to rebut the Appellant’s assertion which they failed to do.

Learned counsel quoted paragraph 14 of the respondents’ Amended Statement of

Defence where it averred that “… several withdrawals were made by the plaintiff using her ATM Card. She alone knew her personal identification number.”

That this averment does not amount to total traverse. That the respondent should have gone a step further to prove that the Appellant made further withdrawals by tendering receipts of their payments to her. That the learned trial Judge did not properly evaluate the evidence before him on this point. On the holding by the learned trial Judge that the plaintiff has failed to prove that a person is capable of withdrawing money from her account without using her ATM Card, learned counsel submitted that that holding was hinged on the lower Court’s omission to consider paragraphs 18 (a – d) and 27 (a – e) of the plaintiff’s statement of claim. Learned counsel quote the said paragraphs verbatim. That under the cardinal rules of pleadings:
1. Any allegation of fact mad by a party in his pleadings is deemed to be admitted by the opposite part unless it is traversed by that party in his pleading or a joinder of issue which operates as a denial of it.

Every allegation of fact made in a statement of claim or counter claim which the party on which it is deemed does not intend to admit must be specifically traversed by him in his defence as the case may be. And a general denial of such allegations, or a general statement of non-admission of them, is not sufficient traverse of them.
Learned counsel cited in support the following authorities
1. NIGERIAN BOTTLING COMPANY PLC v. STEPHEN OBOH (2000) 9 WRN 144
2. HAUWA UBUDU v. BULAMA ABDUL RAZAK (2001) 7 NWLR (pt. 713) 669
3. N.I.D.B. v. OLALOMI INDUSTRY LTD (2002) 28 WRN 66
4. AGF v. A.G. ABIA STATE & Ors (2002) NSCQR 163

That the learned trial Judge failed to pronounce on whether he believed the evidence adduced by the Appellant and in the paragraphs above or not. That the said pleadings by the Appellant remains unchallenged and thus deemed admitted. Cite: NWOSU v. IMO STATE ENVIROMENTAL SANITATION AUTHORITY (1990) 2 NWLR (pt.135) 688; NIGERIAN NAVY v. GARRICK (2006) 4 NWLR (pt. 969) 69. That the needed proof was amply provided for in the Appellant’s pleadings. The trial Court failed to evaluate the evidence adduced or invite

counsel to address it on the issue before making the erroneous finding that the Appellant failed to prove that a person is capable of obtaining money from her account without her ATM Card.

That the lower Court did not properly appreciate the true import of Article 1.5.5 of the Central Bank of Nigeria Guidelines on Transaction Switching Services (Exhibit E) when it constructed the provision in isolation of other provisions of the Guidelines and other relevant laws. That the express use of the term “the holder of the card“ in Article 1.5.5 (supra) means “the exact card issued by the 1st respondent to the Appellant.” That it does not cover events where other cards (faked, forged or cloned) were used to commit fraud. That the Appellant is the holder of an ATM card, without more, cannot amount to proof that the withdrawals on her account was done by her or with her knowledge since the 1st Respondent who issued the said card has direct unfettered access to both her account and the ATM Machines directly under their custody and control. That since they installed the security features therein, they can as well disarm or remove it. That the

Appellant ought not to assume liability where fraud results from the 1st respondent’s agents who are seized of the Appellant’s account details with the bank. Learned counsel urged the Court to resolve this issue in favour of the Appellant.

Learned counsel to the Respondents’ while arguing issue 1 submitted that the case of the Respondent’s is that the several withdrawals made on the Appellant’s account were made by her using her ATM Card since she alone knew her personal identification number (PIN). That the Respondents relied on the Central bank of Nigeria Guidelines on Transaction Switching Service (Exhibit E). He quoted the holding by the learned trial Judge while dismissing the Appellant’s claims pages 173 – 174 of the records of appeal. That the law is trite that in civil matters, the parties who will loose if certain facts are not proved bear the burden of proving those facts. Cited LONGE v. FIRST BANK NIGERIA PLC (2006) 3 NWLR (pt.967), 228; DAODU v. NNPC (1998) 2 NWLR (pt. 538) 355; KALA v. POTISKUM (1998)3 NWLR (540); ITAUMA v. AKPE IME (2000) 7 SC (PT. II) 24.

That in the instant suit, the issue is

“very technic and special” as it relates to the liability of the bank for the use of an ATM Card which has imbued in it a personal Identification Number (PIN) known only to the holder. That it can only be operated or used if the holder uses it with the PIN known only to him or where he allows any other person to use it. That the issue is unlike the operation of a normal account where the account holder writes a cheque and it is presented for payment in which case the bank verifies the signature and runs other checks before payment. That in ATM transaction, the withdrawals are done without the physical presence of the holder of the account within the banking premises. That this is the difference between cheque and ATM transactions. That the Appellant pleaded that at all material times she had her ATM Card in her possession and did not authorized the said withdrawals. That a plaintiff must prove his case on credible evidence of his witnesses and not for the Court to rely on the weakness of the defendant’s case. That the burden of proving that the withdrawals made in the Appellant’s account were not made with her ATM Card using her PIN

rests squarely on her since those facts are within her exclusive knowledge of the Appellants’ personal identification number as pleaded by her in paragraphs 13 and 16 of her statement of claim.

Learned counsel then raised a pertinent question thus:
“Who between the Appellant and the Respondent had the burden of proving who withdraw the amount from the Appellants account using Appellant’s personal identification number and her ATM Card?

Learned counsel submitted that the lower Court was right when it held that the burden of proving that the withdrawals were not made by her was on the Appellant in view of her pleadings that at all material times she was in possession of her ATM Card and that the PIN was configured by her and known to her alone. Learned counsel quoted Article 1.5.5 of the Guidelines on Transaction Switching Service issued by the C.B.N which provides thus:
“Upon receipt of payment card or card details and PIN by the holder, the Holder bears the responsibility for any fraud resulting from the use of the card.”

That this Guidelines was issued in view of the fraud generally committed by holders

of ATM card designed to transfer liability to the bank (1st Respondent herein). That it follows that the burden is squarely on the Appellant who had exclusive possession of her ATM card and PIN to show that she did not withdraw the money and did not disclosed to a third party, overtly or covertly, with the PIN number with which the monies were withdrawn from her account. In either case, the Appellant should bear responsibility for the withdrawals. Learned counsel distinguished the authority cited and relied upon by the Appellant of OGBORU v. UDUGHAN (2010) 2 NWLR (pt. 1232) 538 at 589 – 590. That that authority was an election petition matter which the Courts severally held to be sui generis. He also distinguished the authority of A.S.E.S.A. v. EKWENEM (2009) 13 NWLR (pt. 1158) 410 also relied upon by the appellant. That that Supreme Court authority did not state the law that a Court must decide the case solely on the issues formulated by the parties. That in CONNITEC INT’L CO. LTD v. SOLEL BONEL NIGERIA LTD. (2017) 10 NWLR (pt. 1572), the Supreme Court held that where counsel to parties fail to formulate issues that would determine the real

grievances in the appeal, the Court can formulate the issues itself. Cited: OKPALA v. IBEME (1989) 2 NWLR (pt. 102) 208.

Learned counsel to the Respondents concluded his argument on this issue by stating that the Appellant, having failed to prove her case at the trial, the trial Court was right when it dismissed her claims. He urged the Court to resolve this issue in favour of the Respondents.

FINDINGS ON ISSUE 1:
Upon considering the submission by learned counsel to the parties on this issue it is obvious to me that the main issue in contention is on who the burden of proof lies. In other words:
Between the Appellant and the Respondents who had the burden of proving the withdrawal of the amounts in the Appellant’s account using her ATM Card and her personal identification number?

In her argument on this issue, the Appellant shifted the burden on the 1st Respondents to prove that it was indeed the appellant that withdrew the monies in her account since the 1st Respondent have direct access to the Appellant’s account and the ATM Machine used in withdrawing the money belong to the 1st Respondent. On the other hand, the 1st

Respondent’s assertion is that the burden of proving that the withdrawals were not made by using the ATM Card and personal identification number rests squarely on the Appellant since they are facts within her exclusive knowledge.

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Therefore, between the assertion of the ATM Card given to her by the 1st Respondent and the personal identification number (PIN) which she configured and is within her exclusive knowledge, but her money, the ATM Card and ATM Machine are all the properties of the 1st Respondent; and the assertion by the 1st Respondent that the monies withdrawn from the Appellant’s account were withdrawn by using her ATM Card which can only be successfully achieved by the use of the personal identification number which is within the exclusive knowledge of the Appellant; on who does the burden of proof rests? To answer this question, it must to be noted that the standard of proof by putting the totality of the testimony adduced by both parties on an imaginary scale of justice. The evidence by the appellant and her testimony on one side of the scale, then weighing them together to find out which side preponderates. It is the duty of the Appellant to satisfy the Court on a preponderance of evidence or balance of probability. However, when the onus of proof lies on the Appellant, and she fails to make out a prima facie case, then her case will fail without any regard to the evidence the

1st Respondent called and whether or not it called any evidence at all. See UNION BANK OF NIGERIA LIMITED v. AJAGU (1990) INWLR (pt.991) 224 at 246.

Upon carefully considering the pleading by the Appellant in her statement of claim (pages 4-9 of the Records) her testimony as PW1 (pages 154-155 of the Records) and the documents she tendered in evidence which were admitted and marked as Exhibits ‘A’ ‘B’ and ‘D’ respectively, vis-à-vis the pleadings by the Respondents in its Amended Statement of Defence (pages 52-55 of the Records) and the document admitted in evidence and marked as Exhibit E, it is my finding that the burden of proof rests on the Appellants. She pleaded in paragraphs 10, 13 and 16 of her statement of claim that she applied for and was issued an ATM Card on the instigation of one miss Efe Akpomena, a staff of the 1st Respondent. She went outside the banking hall to an ATM Machine situate within the 1st Respondent banking premises where she changed the default personal identification number (PIN) to her secret personal identification number which was accepted by the ATM Machine and she even withdrew

N5,000 from her account, and then kept the card in her possession. Unfortunately for the Appellant, her saving account containing N414,026.32 was fraudulently debited leaving her with a balance of N1,18166. She screamed blue murder to the management of the 1st Respondent on 16th February, 2009 when she discovered the fraudulent withdrawals. The Respondents responded to this unfortunate situation by stating that it is not their fault for the simple reason that the Appellant was in complete possession of her ATM Card and was the only one with full knowledge of her personal identification number which is the only means of getting access into the money in her account. The Respondents speculated that the Appellant might have knowingly or unknowingly revealed her personal identification number to a fraudster who fleeced her of her life savings. In paragraph 9 of their Amended Statement of Defence the Respondent pleaded thus:
“Paragraph 10 of the Statement of Claim is denied. In answer thereto, the Defendants aver that the plaintiff applied for the use of ATM Card which was offered and she accepted same with the terms and conditions, exonerating the 1st

Defendant from liability for any loss suffered as a result of any unauthorized access unless prior notice thereof have been given to the bank.” (Pages 53 of the Records).

The Respondents further pleaded at paragraph 11(a) of their Amended Statement of Defence, inter alia, thus:
“…. the defendant avers that upon the receipt of the ATM Card details and PIN (Personal Identification Number) by the plaintiff, the plaintiff bears the responsibility for any fraud resulting from using the card. The defendant shall rely on the Central Bank of Nigeria Guidelines on Transaction Switching Service during the trial.”

On her part, the Appellant also embarked on speculation in trying to explained what happened in paragraph 19 of her statement of claim as follows:
19 the plaintiff further observed that:
a. During the said payment through ATM, the defendants failed or neglected to inform the plaintiff by any means whatsoever to wit; by short message system (SMS) notification, alert on her phone nor by any call or otherwise.
b. Payment was made to the said fraudster without the necessary details and information from the

drawee or payee in terms of his/her name signatory, address, photograph and other account verification details.
c. During the month of December to February, in which the withdrawals were made, the defendants failed, neglected and was unable to furnish the plaintiff with an update on her information either by text message or by a printout as the case may be with respect to the savings account in issue.
d. The defendant who is under a duty to keep and monitor properly the said account either refused, failed or neglected to question such abnormal payments to an alleged fraudster and allow such phony debits to be purportedly effected in the plaintiff account. Despite their being in possession of the account holder’s necessary an authentic account details and information.

Thus both the Appellant and Respondents were trading blames against each other without a shred of evidence to back up the allegations. The main evidence relied upon by the Appellant is her statement of account (Exhibit A) showing ten “withdrawals purportedly made in her account by means of an ATM card culminating into a purported debit of her savings account with the sum

of N201,105, which is well above the maximum of 3 withdrawals allowed in a day and a maximum of N60,000 allowed by means of an ATM Card,” on 22nd December, 2008. The following day (23rd December, 2008) seven withdrawals were made from the same Appellant’s account wherein the sum of N136,700 was withdrawn by using ATM Card. On 6th February, 2009 another sum of N14,100 was withdrawn using an ATM Card from the account of the Appellant. Unfortunately, she did not know who made the withdrawals with an ATM Card.

The main evidence relied upon by the Respondents is Exhibit E, the Guidelines on Transaction Switching Service which provides under Article 1.5.5 as follows:
“Upon receipt of payment card or card details and PIN by the holder, the Holder bears the responsibility for any fraud resulting from the use of the card.”

The Respondents while hiding behind this provision insists that since all the withdrawals were made by ATM Card it means the person who withdrew the monies must be privy to the personal identification number that provide access to the account. Neither the Appellant nor the Respondents know the person who

committed this fraud. The burden of proof of therefore still rest on the Appellant since the Respondents denied liability. I agree with the submission by the respondents’ counsel that this case is technical and special as it relates to the liability of a bank for the use of ATM Card by a customer. It is judicially noted and accepted that an ATM Card has imbued in it personal Identification Number (PIN) known only to the holder of the card. Thus the ATM Card can only be operated or used if the holder uses it with the personal identification number known to him alone or if he allows any other person to use it by revealing the PIN. The facts in this case is unlike the operation of a normal account where the account holder writes a cheque and present it on the counter for payment in which case the bank cashier verifies the signature and runs other checks before payment. ATM transaction is done when the withdrawals are done by the card holder outside the banking premises and even after banking hours. The moment the correct personal identification number is used then money can be accessed from the account.
It is my finding that the burden of proving that

the withdrawals were not made with her ATM Card and her personal identification number rests squarely on the Appellant since those facts are within her personal and exclusive knowledge. The Respondents had no knowledge of the Appellant’s personal Identification Number. The Appellant did not shift that burden, it still rests on her. This position of the law as provided by Section 133 of the Evidence Act is unassailable. Therefore, the learned trial Judge was right when he held that the burden of proving that the withdrawals were not made by her rests on the Appellant considering her pleadings in paragraphs 13 and 16 of her statement of claim that at all material times she was in possession of her ATM Card and her personal identification number was configured by her and known only to her. I resolve this issue in favour of the Respondents.

The second issue canvassed by the Learned counsel to the Appellant in his brief of argument is:
Whether the trial Court was right in dismissing the Appellant’s suit without determining whether the duties imposed on the respondents under the relevant laws to safeguard all sums of money in appellant account

have either been discharged or breached.

I have carefully considered the submission by learned counsel to the Appellant while arguing this issue particularly his argument while interpreting the provision of Article 2.4 of Guidelines on Transactions Switching Services (Exhibit E) which provides thus:
“An acquirer/member institution shall be responsible for deploying terminals/payment devices that are EMV4.0-Levels 1 & 2 compliant (or any newer EMV version as periodically advised by the CBN). This guideline only affects new equipment purchases made after September, 30, 2009.”

Learned counsel suo motu tried to interpret the technical and scientific meaning of this requirement. For example in paragraph 3.65 page 13 of his brief he submits thus:
“EMV under Appendix “O” was defined as an abbreviation for Europay, Mastercard and Visa Card and as the global standard helping to ensure that smart (chip and pin) cards, terminals and other systems can interoperate.”
Learned counsel further interpreted Article 2.4 of Exhibit E in paragraph 3.66 of his brief as follows:
“The ATM Card issued by the

1st Respondent was neither Europay nor Mastercard nor Visa card, it was magnetic Stripe Based (Pages 158 lines 1 – 8) Magnetic Striped based cards are not envisaged by the CBN guideline, it falls below the minimum standards of CBN requirements.”
Learned counsel reached a decision in paragraph 3.67 thus:
“The trial Court failed to consume our submission that newer versions of chip and pin based cards like Europay card, Master card, and Visa cards are safer and mandatory under the Central Bank of Nigeria guidelines, thus “Magnetic stripe based cards” deployed by respondents……. Are illegal.”
“The fact that the Appellant was issued a magnetic stripe based ATM card smacked of negligence and breach of duty of care which still further, relieves her of liabilities for unathorised withdrawals on the account in issue.” Paragraph 3.68.

Learned counsel to the Appellant embarked on a detailed scientific analysis on the reason why the Appellant lose her life savings. That the 1st respondent’s security system was hacked and breached by person unknown to the respondents and N201,105 was

taken away in a single day. That it was proved that the respondents failed to provide adequate information regarding who they paid the sums in issue for possible tracking, arrest and recovery of the money because the ATM machine used was unlike others not backed with security cameras.

Learned counsel concluded by submitting that it is clear that Respondents were patently and clearly in breach of the duty of care over the Appellant both under a customer/Banker relationship and duties under a contract. That the respondents are under a duty to properly keep and safeguard the appellant’s money under their care from theft, fraud and losses. That the lower Court erred in law in dismissing the Appellant’s Suit without determining whether the duties imposed on the respondent were breached. He urged the Court to resolved this issue in favour of the Appellant, set aside the decision by the lower Court and allow this appeal.

In his response learned counsel to the Respondents submitted that there was no evidence adduced by the Appellant before the lower Court to show that the type of ATM Card issued to her was inferior to other or had a proven

disadvantage to other types of ATM Cards used by other banks. That she did not also lead evidence to show that the other ATM Cards manufactured by other companies is leak proof and cannot be manipulated if the holder is negligent or discloses her PIN to a third party. There was no such proof. That negligence is a question of fact not law. Each case must be decided by the plaintiff. Cited in support the following authorities:
1. SBN LTD. V. MPIE LTD. (2007) 3 NWLR (pt.868),146;
2. UTB NIGERIA LTD. V. OZOEMENA (2007) 3 NWLR (pt.1022) 488.

Learned counsel to the respondents urged the Court to resolve this issue for the respondent and dismiss this Appeal.

FINDING ON 1SSUE 2:
While considering the submission by learned counsel to the Appellant above, I alluded to his interpretation of the technical and scientific provisions in versions of chips and pin based cards like Europay card, Master card and Visa cards are safer and mandatory and that the magnetic strip based cards deployed by the respondents are illegal. With due respect to learned counsel this submission is evidence that are weighty and can convince any Court or Tribunal if given

from a witness box. Learned counsel would have helped his client’s case by calling an expert in this area to testify or enter the witness box himself to give evidence if he has than proffering expert opinion in his submission. It is trite law that an expert is a person qualified to speak with some amount of authority by reason of his special training, skill mastery or familiarity with the subject matter in question. See RABIU v. AHMADU (2013) 2 NWLR (pt.1337) 36 at 52; A. – G, FEDERATION v. ABUBAKAR (2007) 10 NWLR (pt. 1041) 1 at 82, (2007) 4 S.C. (PT. II) 62 at 247. I noted that the Appellant did not adduce evidence at the trial to show that the ATM card type issued to her was inferior to others or had a proven disadvantage compared to other types of ATM cards used by other banks. The Appellant did not also lead evidence to show that the other types of ATM cards manufactured by other companies is leak proof and cannot be manipulated if the holder is negligent or disclosed her personal identification number to a third party. For the Appellant to succeed in her argument, she has to show concrete evidence that the fraudster – assuming there was

fraud – would not have succeeded if a different ATM card was issued to her instead of the Magnetic Strip card which was issued to her. I noted that they were negligent by contending that the Appellant was in custody of her ATM card and PIN. See DIAMOND BANK PLC v. PARTNERSHIP INVESTMENT CO. LTD. (2009) 18 NWLR (pt. 1172) 67 at 73. I also resolve this issue against the Appellant.

It is the judgment of the Court that this appeal lacks merit, it is hereby dismissed. The judgment of the lower Court delivered on 16th December, 2013 is upheld. I make no order as to cost.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading the draft of the lead Judgment delivered by B. G. SANGA, JCA.

I agree with the reasoning and conclusion which I adopt as mine. I also dismiss this appeal and affirm the Judgment of the Onitsha division of the High Court of Anambra State.
I abide by the order as to costs made by SANGA, JCA in the lead judgment

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA,
I agree with his reasoning and conclusion.

I also dismiss the appeal.
I abide by the consequential order made as to costs.

Appearances:

K. IZUOGU Esq. For Appellant(s)

ONYEKWULUJE Esq. For Respondent(s)