The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A ZNS TV anchor has been stripped of the $27,500 damages she won from Scotiabank (Bahamas) after the Court of Appeal found there was “no basis in law” to hold it responsible for her loss.

Sir Michael Barnett, the appeal court’s president, in a unanimous December 15 verdict ruled that Macushla Pinder, who anchors the state-owned broadcaster’s weekday Bahamas Tonight programme at 7pm, was instead responsible for her own misfortune because she failed to monitor her account and “immediately” report the unauthorised withdrawals that were occurring.

Noting that Mrs Pinder’s case was based on Scotiabank having breached both the Personal Financial Services and cardholders’ agreements with her, Sir Michael determined that she had failed to provide any details explaining how either was violated by the Canadian-owned bank. It was “surprising”, he said, that Scotiabank itself did not demand further specifics on her claim.

And the Court of Appeal also blasted now-retired Supreme Court justice, Keith Thompson, who originally heard the dispute for the “inexcusable” near two-year delay between the trial and providing his written judgment.

Describing the delay as “simply unacceptable”, Sir Michael said judges simply cannot afford to risk breaching a party’s “right to a fair hearing” by taking so long to deliver judgments critical to upholding freedoms and rights guaranteed by the Bahamian constitution.

“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. In his judgment he does not apologise for the delay nor does he proffer any explanation for the delay. This is inexcusable,” the Court of Appeal president found.

Referring to both the constitution and prior court rulings, which all uphold the right “to a fair hearing within a reasonable time”, Sir Michael continued: “Judges cannot continue to ignore these admonitions as to what constitutes a reasonable time for the delivery of judgments.

“Judges are the guardians of the fundamental rights and freedoms guaranteed by the constitution. Judges cannot by inordinate and inexcusable delays in delivering their judgments themselves breach a litigant’s right to a fair hearing within a reasonable time.

“Whilst we appreciate the heavy workload that judges carry, it is imperative that they manage their workload in a manner that does not cause these inordinate delays. Two years to deliver judgment after a two-day trial is simply unacceptable.”

Sir Michael’s verdict echoes a ruling he have last month in an employment dispute involving Freeport-based manufacturer, Polymers International, where he lambasted another Supreme Court judge - this time Petra Hanna-Adderley - for taking almost five years to deliver a judgment. He said that “borders on judicial misconduct”.

With Supreme Court justices who fail to deliver timely judgments clearly in his crosshairs, Sir Michael returned to the dispute between the ZNS anchor and Scotiabank (Bahamas) over “unauthorised transactions” involving her bank account which she sought to blame on the latter.

Mrs Pinder, who opened her Scotiabank account in 2009, was at the same time provided with an ATM (Automatic Teller Machine) card enabling her to conduct cash withdrawals and other transactions such as monitoring her account. She was the only person who knew the card’s Personal Identification Number (PIN), and was also issued a pass book for updating the account.

However, Mrs Pinder alleged she was first alerted to problems with her account when she visited Scotiabank’s Palmdale branch in February 2016 to report the ATM card lost. The balance was “lower than I expected it to be” and, after requesting a statement for 2015, identified 18 debits - worth a collective $17,500 - that she claimed never to have made.

On two days, the ZNS anchor alleged, two debits of $1,000 each occurred even though the maximum daily withdrawal limit was capped at $1,000. The statement showed a net credit of $14,850, and net debit of $91,979, had been made to Mrs Pinder’s bank account without any explanation as to what they were for.

“I was perplexed by the 2015 statement given the fact that I never used an ATM machine to withdraw monies off of the account,” she alleged. She also claimed that several Christmas 2015 withdrawals occurred when she was with her family on holiday in New York, and had the card in her possession.

Many of the ‘suspect’ withdrawals were made at the Rubis service station on Wulff Road, but Mrs Pinder said she was unable to identify the persons responsible despite being shown their photographs by Scotiabank’s investigator, Edward Smith.

Denying that she had given her ATM card to anyone else to use, or disclosed its PIN number, the ZNS anchor alleged that the unauthorised transactions on her account continued even after the original was destroyed and replaced.

After calling for a police investigation, she met with assistant superintendent Barrett who said “there is a possibility that my card had been skimmed; that a group of men had recently been taken into custody for a similar crime and that hopefully one of the suspects would be responsible for my matter”.

That was the last Mrs Pinder heard from the police, and she initiated legal action against Scotiabank (Bahamas) after it refused to reimburse her for the $27,500 lost. She claimed its systems failed to detect that “an unauthorised ATM card” was being used to access her account and exceed the daily withdrawal limit, while the bank also did not carry out a proper investigation.

Scotiabank (Bahamas), though, argued that Mrs Pinder’s “loss, costs and expense were caused or contributed to by her own negligence”. It alleged she had failed to properly monitor her bank account’s activity; safeguard her ATM card; and notify itself and the police of the problems in a timely manner.

Sir Michael, in overturning Justice Thompson’s ruling, agreed with Scotiabank (Bahamas) that Mrs Pinder had failed to provide sufficient proof to back up her allegations. “The only evidence in support of that claim was the evidence of the respondent that she did not use her card and that she never used her card to withdraw monies from an ATM machine,” he ruled.

“She said that she never gave her card to anyone nor did she give her PIN number to anyone. However, the evidence also is that she had lost or misplaced her card for periods of time. The evidence is also consistent with the fact that someone else may have used her card and pin number to withdraw monies.”

Sir Michael also found there was “no evidence” that Mrs Pinder’s card had been skimmed, which is a technique used by criminals where they run a bank card through a device that captures all the information contained on its magnetic strip. They are then able to “clone” the card, and start using it to withdraw funds from the victim’s account.

The Court of Appeal president described this as speculation on the ZNS anchor’s part, and added that the Christmas 2015 withdrawals were consistent with use of the ATM card on the days she left for - and arrived from - New York.

Agreeing that Mrs Pinder did not alert Scotiabank “that any withdrawals were improperly made until well after” they occurred, Sir Michael also dismissed her argument blaming this on the bank ceasing to update her pass book from 2016. He added that she had the ability, and obligation, to perform checks via ATM machines, but did not do so.

“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,” Sir Michael concluded.

“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.”