DC 813

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 131 of 2006

BETWEEN

OVEN ANIS
Complainant

AND

BANK SOUTH PACIFIC
Defendant

Kainantu: I Kurei

2007: February 26, April 11

Cases Cited

1. PNG Institute of Medical Research –v- PNG Banking Corporation N1934
 of 2006, Kirriwom J 

1.	Commonwealth Trading Bank of Australia –v- Sydney Wide Stores Pty Ltd & Anor [1981] CLR 30.

2.	London Joint Stock –v- MacMullen & Arthur [1918] AC 777

3.	The Kepitigalla Rubber Estates Ltd –v- The National Bank of India Ltd [1090] 2 KB 1010

References

Nil

Counsel

For the Complainant – In Person
For the Defendant – In Person

26 February 2007 

EX-TEMPORE JUDGMENT

Introduction 

This court has been privileged to have Two (2) learned Counsels appearing both for the Complainant and the Defendant.

The Facts, Issues, Law and the Evidence has been fully analyzed by the respective Counsels.
 
I intend to briefly touch on what the learned Counsels have fully discussed and draw my conclusions and give reasons for it.

Facts 

The Complainant, an illiterate "haus lain" woman who opened a bank account with the Defendant (BSP) Banking entity at Kainantu Branch. The understanding was that it is a Kundu Saver Account. In other words, a Kundu Card was to be issued with PIN number and withdrawals to be at ATM or for shopping at EPTOS.

The Complainant did made deposits but withdrawals made were minimized. Then on 25 August 2005, withdrawals by withdrawal slip commenced. Over a period of time number of paper withdrawals were made. Complainant claims she never made paper withdrawals or counter withdrawals.

On 29 May 2006, she found at ATM, her balance was only K 470.00 as compared to the last balance she was aware of was K 4, 600.00 Complainant eventually put stop to the operating of her account.

She then filed this proceedings, whilst this proceeding was pending it be noted, her husband Boxy was arrested and charged in the criminal proceedings.

Issues

Whether the Defendant is negligent?

Whether the Defendant failed its duty of care to the Complainant?

Whether there was contributory negligence on the part of Complainant?

Law

Common Law – The Law of Contract.

Case Laws, Equity.

The Complainant did not cite any decided cases. The Defendant did draw this court’s attention on Four (4) case laws namely:-

1.	PNG Institute of Medical Research –V- PNG Banking Corporation N1934 of 2006, Kirriwom J

2.	Commonwealth Trading Bank of Australia –V- Sydney Wide Stores Pty Ltd & Anor [1981] CLR 304

3.	London Joint Stock –V- MacMullen & Arthur [1918] AC 777

4.	The Kepitigalla Rubber Estates Ltd –V- The National Bank of India Ltd [1090] 2 KB 1010

The Defense Counsel has adequately analyzed the cited cases and submits to this court to accept the conclusion he has drawn.

On the other hand the Counsel for the Complainant merely analysis the factand evidence and submits to this court that the Defendant Bank is responsible or negligent.

Evidence 

I will be very brief, as stated above the respective Counsels have done the hard yardage. As agreed by both parties evidence adduced be, by way of Affidavits.

Both sides filed Affidavits, the Complainant for herself, for the Defendant – Bank, Six (6) of its employees filed Affidavits, Five (5) of them were from bank tellers who have actually accounted for the transaction together with withdrawal slips (copies). It be noted, defence witness, Anna Aparima in paragraph Two (2) of her Affidavit had refused Boxy to withdraw from Complainant’s account 1000 739636. However, at para 4 during her lunch break met Boxy and his wife (complainant) at market place and interviewed the Complainant, obtained particulars of the said account, keyword, relevant particulars and amount. It is presumed all these particulars were obtained in presence of Boxy. What Anna Aparima had done is of a professional negligence on her part. I will briefly discuss this later.

I note that on 03 May 2006, Defense witness Bernadette Yenderihu when following the set procedures and serving the person who was withdrawing K 300.00 wrote on the "withdrawal", "Last paper withdrawal Customer advised to bring card in future". 

Total of Four (4) withdrawals were made with Bernadette Yenderihu. The last being on 05 May 2006. Also on 03 May 2006, withdrawal of K100.00 was made with Defendant witness Sonoma Taki. 

The last withdrawal was on 05 May 2006, amount of K60.00 was with Defendant’s witness Sharon Beso. Counsel for Complainant claims of Two (2) other withdrawals of 12 March 2006 and 04 April 2006, no records were produced. I will also briefly discuss this evidence later.

Considerations

I turn to Osborn’s concise law Dictionary for the meaning of the following:

Negligence:– "A tort, actionable at the suit of a person suffering damage in consequence of the defendant’s breach of duty to take care to refrain from injuring him.

Negligence is the omission to do something which a reasonably man, guided upon those considerations which ordinarily regulate the conduct of human 
affairs, would do, or doing something which a provident and reasonable man would not do." There are many meanings given but I will limit myself to Two (2) only.

Breach of Trust:- "An improper act, neglect or default on the part of a trustee in regard to his trust, either in disregard of the terms of the trust or the rules equity."

Cases Cited

[PNG Institute of Medical Research –vs- PNG Banking Corporation.] 

The Defense Counsel points out the Bank, defendant was held to be negligent. Also he briefly discussed his Honors findings. Other common law authorities point out that Complainant has to take reasonable precautions as to avoid fraud.

The Defendant’s Counsel points out if there is any element of negligence on the part of the Defendant’s employees.

I now turn to briefly discuss the Defense witness Affidavit in particular witness Bernadette, Anna Aparima, Sonoma Taki and Sharon Beso. Anna Aparima on 25 March 2006 at the market place not in the Bank or work place obtains keyword or hide name, etc presumable in presence of Boxy. I ask, does Defendant Bank allow its servants or employees to conduct its affairs out in market place and public streets. On the part of employee Anna Aparima, is it a proper conduct, is it negligence or good faith. 

Then defendant witness Bernadette Yenderihu, total of Four (4) transactions took place with her. On the 4th occasion she actually noted on the withdrawal slip as last withdrawal by paper accordingly advised for card to be brought in future.

Witness Sonoma Taki processed Five (5) withdrawals, one was on 03 May 2006 for the amount of K 100.00. I noted that on the same day K 300.00 was withdrawn in which Bernadette Yenderehu processed and noted it being last with paper withdrawal.

Also from the paper withdrawal, the name Oven was spelt with letter "V" and "W", Ten (10) times with letter "V" and Five (5) times with letter "W", on one (1) occasion "V" or "W" was not clear.

The scenario I have is that, an illiterate customer who followed Bank policies, as she could not write let alone read, gives her keywords or "hide name" particulars to the Defendant organization who she trusted would take control of what ever amount she deposited. Then witness Anna Aparima who conducts her employer’s business in a public place. Thereafter counter or paper withdrawals came flooding the bank counter.

Not once did the employees who assisted in the withdrawals question the woman about her card. They all took it for granted that, they can’t turn away customers and so long as the correct procedures with correct particulars are given, the withdrawal is allowed and money is withdrawn from the account.

Until 03 May 2006, witness Bernadette advised for card to be used in future. Even then another transaction took place same day and one last withdrawal was on 05 May 2006.

I fail to comprehend the actions of Defendant’s employee’s actions. The Kundu Card is meant to be withdrawals by card at ATM or EPTOS as to minimize long ques at the banks and it is convenient. There may be exceptions for example when the systems are down then paper withdrawals can be permitted, of course with proper particulars and identifications. 

Another factor I fail to understand is the fact that, the Defendant as a banking entity is equipped with latest modern technology. Every teller has a computer at her or his disposal when dealing with customers. No doubt Complainant’s transaction would be recorded and data is kept and readily available when witness Bernadette directs for card to be used for future withdrawals. I ask myself if other bank officers were informed. 

Witness called by Defense, Mr. Stanley Bole as a Branch Operations Team Leader, who is in charge of general operations of Kainantu Branch. Would it not occur to him that withdrawal at the counter are continuous, with daily or monthly data available, a reasonable person with banking experience would suspect something fishy.

The question to ask is, why is this particular customer making paper withdrawals when there is card issued and at her disposal. If she has lost her card then she be advised accordingly, otherwise any thinking bank officer, with records of transactions readily available and appearing on the screen would form a suspicious mind. It would not hurt to ask general questions to the customer as to why card is not being used.

Considering what Defense Counsel has submitted in regards to case laws, that is complainant has duty to the Defendant as not be careless as to allow fraudulent transactions taking place.

I also may add that employees, servants of the Defendant be careful as not to allow fraudulent transactions to take place.

I am also mindful of the fact that there is possibility that Complainant had in person was doing the paper withdrawals. I am saying this, simply no one in the Bank really knows of the Complainant’s identity except maybe Anna Aparima. There was no strict identification of the person doing the paper withdrawals. I presume Boxy alone knows of the whole truth. 

Conclusion

Balancing the facts and evidence from both sides on balance of probability, I conclude with the following:-

1.	There are elements of negligence on the part of Defendant Bank as per performance of its employees as discussed above.

2.	Accordingly there is breach of trust.

3.	Complainant contributed towards the withdrawal of funds in her account. Accordingly there is element of contributory negligence.

Accessing Of Damages

On 26 February 2007, after informing Mr. Kua, Counsel for the Complainant and the complainant herself when making known my findings.

The indication was, final orders will be entered after written findings are made, which I now do so.

The Complainant’s counsel submission on damages is considered. Also I have found that Complainant contributed towards the negligence as such not all of what Complainant claims will be entered as Orders of this court.

Following is considered and awarded:-

1. Negligence/Breach of Trust considering contributory Negligence, fair amount assessed and awarded is
	K 2,000.00	
2. Loss of income considered but not awarded
		
3. Interest (8 per cent) considered but not awarded
		
4. Costs (inclusive of that ordered on 24/11/06)
	K1, 298.00 	
5. Total amount awarded
	K3, 298.00 	

For the Complainant – In Person
For the Defendant – In Person