In a unanimous decision handed down on 15 December 2021, the Bahamian Court of Appeal affirmed the established duty of a customer in a banker-customer relationship. The customer has a duty to monitor his/her bank account to ensure that no fraud was committed.
In the decision delivered by the President of the Court, Sir Michael Barnett held
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.
The Court also addressed the issue of delay in rendering a ruling in the trial Court.
16. The evidence was taken over two days in July, 2019. The judge reserved his decision. Almost two years later, in April, 2021 the judge delivered his judgment.
17. In his judgment he does not apologize for the delay nor does he proffer any explanation for the delay.
18. This in inexcusable.
19. Article 20 (8) of The Constitution provides:
“(8) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.” [Emphasis added]
20. As far back as 2008 in Reid v Reid [2008] CCJ 8 (AJ), Justice Adrian Saunders, the now President of the Caribbean Court of Justice, said:
“as a general rule no judgment should be outstanding for more than six months and unless a case is one of unusual difficulty or complexity, judgment should normally be delivered within three months at most.”
The Bank was represented by Raynard Rigby QC and Asha Lewis. Mr. Rigby was elated by the Court clarifying the law and welcomed the decision as “one that further expounds the law on the banker-customer relationship adding to the jurisprudence in the area of banking law“.
