[80]. SPENDING ERRONEOUSLY TRANSFERRED MONEY BY BANKS UNDER THE BANKING JURISPRUDENCE.
[80.1]. Introduction:
Let us even graduate from the reasoning of whether the mistake of the sender of the money is the fault of the spender or whether the spending was honest or dishonest, did you know, first, the money in your account is not truly yours? Second, did you know that it is a breach of duty on the part of the bank if upon request, the Automated Teller Machine (ATM) does not dispense or that it debits a person without any withdrawal through the card? All these issues in this exposition are addressed in the line of legal reasoning and banking jurisprudence.
[80.2]. The case of Adetunji Tunde Oluwasegun.
On Monday, 18th January, 2021, an Ilorin Driver identified as Adetunji Tunde Oluwasegun was alleged to have fraudulently diverted the sum of ₦2,000,000.00 (Two Million Naira Only) to his personal use, after the money was erroneously transferred to his bank account. He was said to have "dishonestly taken the said sum, property of Sherifat Omolara Sanni, which she erroneously transferred to his bank account domiciled with Guaranty Trust Bank Plc, without her consent and thereby committed an offence contrary to Section 286 of the Penal Code and punishable under Section 287 of the same Penal Code.”
Following the Defendant’s guilty plea, the trial judge thereafter convicted and sentenced him to two (2) years imprisonment with a fine of ₦200,000.00. The judge also ordered the convict to restitute his victim the sum of ₦2million before he finished serving his jail term.
[80.3]. The Case of Mr. Moses G. Jwan v. Ecobank Nigeria Plc; United Bank for Africa Plc.
Though, dismissed for want of evidence; it is a case of the Appellant, Mr. Jwan who sued the respondents for non-payment of the ₦10,000 supposedly withdrawn using the first respondent bank’s card, his primary bank, in the machine of the second respondent bank. He was debited however the machine did not dispense any sum to him. He relied on the principle "Res ipsa loquitur" (the fact speaks for itself) which was abruptly rejected by the Honourable Court, Court of Appeal, Lagos State Division. The Respondents, on the other hand, relied on the evidence that in their record, it had it that he had received the money.
The court of appeal, for lack of substantive evidence by the plaintiff, rejected his claim and subsequently dismissed the Appeal. Added, had there been preponderance of evidence substantiating his claim, it would have been a breach of duty on the part of the bank(s).
[80.4]. Who owns the money in your bank account?
Revisiting the former case, conversely, has the defendant committed theft under section 286, Penal Code by spending an erroneously sent money? The provision, in its subsection 1 reads:
“Whoever, intending to take dishonestly any movable property out of the possession of a person without that person’s consent, moves that property in order to take it is said to commit theft.”
To this end, the criminal law has made the position staunch in law, in AFOLABI v. THE STATE (2010) 6-7 MJSC 187 at 219-220 paragraph G-A that:
“Before a trial comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the particulars of the offence charged.”
Be that as it may, for the prosecution to succeed in proving theft the following element must be proved:
[a]. That the property in question is moveable property.
[b]. That the property was in the possession of the owner
[c]. That he did so without the consent of his owner.
[d]. That he did so dishonestly (with intent to cause wrongful gain to himself or wrongful loss to the owner).
Ellinger, Lomnicka and Hare in Ellinger, E.P., E. Lomnicka, and Hare (2011), in their book, “Modern Banking Law", Oxford University Press, 5th edition, 2009, explain that:
“It is now well established that the property in the customer’s money passes to the bank following its deposit and that ‘money paid into a bank account belongs legally beneficially to the bank and not the account holder".
Thus, "money paid by the customer to the credit of his bank account is treated as being lent by him to the bank, and such deposited funds are not earmarked or held in trust for the customer, but become the property of the bank. Essentially, the banker-customer relationship is a debtor-creditor relationship, not one of trust, bailment or agency.”
This follows conclusively that under the banking jurisprudence, depositors who deposit their money with a bank are no longer the legal owners of this money. Instead, they are just one of the general creditors of the bank whom it owes money to.
In essence, any deposit of money made to a bank legally belongs to the bank, and it is reasonably logical to conclude that the money erroneously sent to the creditor’s bank has been willingly given to the account holder, and its withdrawal was not without the consent of the bank, owner of the money, availing the spender of any crime of theft or stealing, as the case may be. Relying on the latter case, requesting the money in his account and the bank refusing him payment might be a breach of duty on the part of the bank.
Still on the same vein, withdrawing money in excess of what the account holder has in his/her account can come under the subject of overdraft or debt. That a person withdraws some sum which they have not deposited in their account may not, in actual fact, amount to theft or stealing in the banking jurisprudence, rather debt or overdraft, as was in NDIC v. RABO FARMS LTD (2018) 15 NWLR (Pt 1643) 482, which he would be asked to repay.
[80.5]. Intention with which the money is spent.
The lettering of the Code capitulates on "dishonest intent" in the conversion of the movable property. Perhaps, for the reason that, safe in the cases of strict liability, the act or omission of an accused person is not guilty until their mind is. The intention with which a said criminal action is carried is material to any conviction.
Hence, if the customer, an account holder, has an honest belief that the money belongs to him (especially when he is expecting some sum from a family/friend or even a stranger whom they have been in talks and coincidentally has his account credited), spending such money may not in fact and law, amount to stealing or theft, hence, an amicable settlement for the repayment of the money within a specified time, which refusal may amount to an action for "money had and received".
However, if the customer has a criminal intent in the spending of the money, it may be justified to nail such customer for a criminal action of theft or stealing.
Lo and behold, even the devil does not know the intent of mind, for the ground that sometimes, the intention of man may not be ascertained from the circumstances surrounding an act, it may be unreasonable and illegal to convict a person for spending money erroneously received from a bank transfer.
[80.6]. Conclusion:
The relationship between a bank and a depositor is that of debtor and creditor. The depositor, in effect, lends money to the bank in return for the bank’s promise to return the deposit and pay for the use of the deposit, usually in the form of interest. The depositor does not own a right to the exact naira he deposited; instead, he has a right to demand payment from the bank for the amount deposited. When the deposit is not returned upon the depositor’s demand, the bank has breached the deposit contract and the depositor may then sue for the return of money that the bank owes the depositor. A person who withdraws and spends money erroneously sent to his account has only done so with the consent of the bank, especially when his intents are not evil.
