Scotiabank (Bahamas) Ltd v MacUshla Pinder
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett Kt., P |
| Judgment Date | 15 December 2021 |
| Neutral Citation | BS 2021 CA 202 |
| Docket Number | SCCiv App. No. 73 of 2021 |
| Year | 2021 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett Kt., President
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
SCCiv App. No. 73 of 2021
Mr. Raynard Rigby Counsel for the Appellant
Mr. Darren Bain, Counsel for the Respondent
Al Medinnii v Mars (UK) Ltd [2005] EWCA Civ 1041 mentioned
Bahamasair Holdings Ltd. V. Messier Dowty Inc [2018] UKPC 25 considered
Bank St. Petersburgh PJSC v Arkhangelsky [2020] EWCA Civ 408 applied
Barclays Bank plc v Quincecare Ltd [1992] 4 All ER 363 considered
Central Bank of Ecuador and others v Conticorp SA and others [2015] UKPC 11 considered
JP Morgan Chase Bank, N.A. v The Federal Republic of Nigeria [2019] EWCA Civ 1641 considered
Reid v Reid [2008] CCJ 8 (AJ) applied
Rowe v Health and Care Professions Council [2019] EWHC 695 mentioned
Sekers Fabrics Limited v Clydesdale Bank plc [2021] CSOH 89 considered
Civil Appeal — Breach of Contract — Quincecare Duty — Burden of Proof — Pleadings
The respondent had a saving account with the appellant /bank and was given an ATM card at the time she opened the account. The respondent alleged that unauthorized transactions occurred on her account between 30 September, 2015 and 8 November, 2016, and claimed that she suffered a loss of $27,500.00. She sued the bank for various breaches to recover the loss. The learned judge found the appellant liable to repay the respondent the sum of monies withdrawn from her account during the period and ordered the bank to pay the respondent damages. The appellant now appeals the decision on numerous grounds inter alia that the Learned Judge fell into error “of law and fact by failing to appreciate that on a true interpretation of the Personal Financial Services Agreement that the Respondent had other options to update her account and by her failure to take advantage of those options she failed in her duty to the Appellant” as well as that the “Learned Judge fell into fundamental error and misapplied the law when he held that the Appellant did not lead any evidence to support its defence of negligence of the Respondent in meeting and honouring the terms of the Personal Financial Services Agreement.” The appellant ask that the judgment be set aside in its entirety. The court heard the parties and reserved its decision.
Held: appeal allowed and the judgment is set aside. The parties are invited to make written submissions regarding cost. The respondent is to submit its submissions by the 31 December 2021 and the appellant is given 1 week to submit submissions thereafter.
The Respondent did not discharge the burden of proof to satisfy the Court that the allegations in the Writ of Summons/Statement of Claim were proven. It is fundamental to our system of litigation that the burden is on a plaintiff to prove its pleaded case. The standard of proof is on a balance of probabilities.
The statement of claim does not identify what contractual term (expressed or implied) of either the two pleaded agreement which the bank is alleged to have breached. The material terms of an agreement which are relied on in a matter should be set out in a statement of claim.
The plaintiff led no evidence that the withdrawals were made by a card other than her own and the judge did not expressly make that finding. Moreover, the respondent did not bring to the attention of the bank that any withdrawals were improperly made until well after the withdrawals had taken place. The respondent has not pleaded, nor has she identified what term of either of the two contracts that the bank has breached. She has not adduced any evidence to show that the withdrawals were made otherwise than through the card(s) which the bank issued to using her PIN number. She has not led any evidence that the bank issued a second card. The claim for breach of contract on the evidence was not proven.
Assuming that the withdrawals were improperly made, the issue is whether the respondent has made a case that the loss was caused by some breach of a term expressed or implied in her agreements with the bank or as a result of some duty in tort owed by the bank to her.
In the absence of any evidence that there was skimming or another card being issued by the bank, there is in my judgment simply no basis in law in holding the bank liable for the loss.
In her agreement with the bank, the respondent accepted a responsibility to regularly monitor her account and to immediately report any improper transaction on her account. She had the ability to do so but did not do so. It was that failure which caused the loss. There was simply no evidential basis for the judge to find liability on the part of the bank on the respondent's pleaded case.
Judgment delivered by the Honourable
This is an appeal by Scotiabank (Bahamas) Limited (“the bank” or “the appellant”) against a judgment by Thompson J in the Supreme Court whereby he found the bank liable to repay to a customer of the bank, Macushla Pinder (“Pinder’ or “the respondent”), the sum of $27,500.00 being monies withdrawn from her account during the period September, 2015 to November, 2016. The judge also ordered the bank to pay the respondent damages.
The bank on this appeal asserts that the judge got it wrong and that the judgment should be set aside in its entirety.
The facts in this case are for the most part not in dispute. The respondent was a customer of the bank with a savings account. At the time of opening the account she was given an ATM or ABM card. This card when used with her personal identification number enabled her to withdraw monies from her savings account from any ATM or ABM. She was the only person who knew her PIN number. Of course as a corollary any person who had possession of the card and knew her PIN number could also use the card to withdraw monies from the ATM or ABM. At the time she opened the account she signed a Personal Financial Services Agreement.
Although no direct evidence was led on this fact, it is common knowledge that an ATM card not only permits withdrawals from an account through a banking machine, but also enables a customer to obtain information about the balance on the account at any time.
I set out the respondent's witness statement which describes the facts that gave rise to her claim. She said:
“3. That sometime on/about the year 2009, I opened a savings account (the ‘Account’) at the Defendant's bank, situated at the Defendant's East Street and Soldier Road branch.
4. The Defendant assigned the Account the number, 19010.
5. From the date of opening the account to the date I closed it, on/about August 2017, the account was always exclusively in my name. I was the sole signatory to the account.
6. At the time of opening the account, the Defendant issued to me the following:
i. A passbook. Whenever it was I attended the bank, I updated the Account using this book to note the Account's balance and listing of all transactions on the Account;
ii. An ATM/ABM card. As I was the sole signatory and account holder for the Account, there was one (1) ATM/AMB card issued for the account. I never gave the Personal Identification Number (‘PIN’) to anyone. I never gave the ATM/AMB card to anyone; and
iii. A Personal Financial Services Agreement (See Tab 11 of the Defendant's
7. At the time of opening the Account, I was advised that I could only withdraw a maximum of One Thousand Dollars ($1,000.00) per day.
8. That since the date of opening the account, I only withdrew funds from the account in person via a teller at a branch of the Defendant's bank.
9. I have on occasion, by use of the ATM/ABM card made Point of Sale purchases.
SUSPICIOUS TRANSACTIONS
10. That sometime on/about the 23 February 2016, I went into the Defendant's Palmdale location to report the card lost and to make an over the counter withdrawal. At this time, I asked the teller for the balance on the Account.
11. The amount stated to me by the teller, seemed odd. The balance was lower than I expected it to be. I kept a journal log withdrawals.
12. I then asked the teller for a statement/account balance. I was given a printed statement (I will herein after refer to this statement as the ‘2015’ Statement’). A redacted' copy of the 2015 Statement provided to me by the Defendant is at Tab 10 of the Plaintiffs Bundle of Documents.
13. Since the opening of the account, the Defendant never issued to me printed statements of the Account transactions (unless requested). Sometime in 2015, the Defendant ceased to update my passbook.
14. As I reviewed the 2015 Statement, I noticed that there were several One Thousand Dollar ($1,000.00) withdrawals listed as:
“AUTO TELLER DEBIT SBW IBW
RUBIS WULFF ROAD NASSAU, BS”
(I will herein after refer to these as the Rubis Withdrawals')
15. The 2015 Statement also revealed that:
i. between the period of 29th September 2015 and 19th February 2016, there were eighteen (18) debits on the Account, which totaled Seventeen Thousand Five Hundred Dollars ($17,500.00);
ii. the Debits were for various Rubis locations using the card numbered 4303817110698209.
iii. On the 4th January 2016 and the 21st December 2015 there were two debits of One Thousand Dollars ($1,000.00) each on the same day; and
iv. A Passbook Net Credit of $14,849.90. There was no itemization as to what this net credit was for. There was also a Passbook Net Debit of $91,979.04.
Again, there was not itemization of these entries on the 2015 Statement advising as to what these sums represent and for what period.
16. I was perplexed by the 2015 Statement, given the fact that I never used an ATM machine to withdraw monies off of the account. I was even the more perplexed by the 2015 Statement wherein it recorded that:
i. During the...
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