Bank’s Duty of Confidentiality under Cameroonian Law: Absolute or Qualified?

Open Access

Year : 2023 | Volume :03 | Issue : 01 | Page : 8-19
By

    FON Fielding Forsuh

  1. Bafuke Evarestus NJI

  1. Senior Lecturer (Law), University of Dschang, Faculty of Laws and Political Sciences, P.O. Box 96, Dschang, Cameroon
  2. PhD Fellow, University of Dschang, Faculty of Laws and Political Science, Department of English Private Law, P.O. Box 96, Dschang, Cameroon

Abstract

The idea of people keeping or entrusting their money (finances) and other precious items with financial Institutions was as a result of the reliable and secured nature of these institutions. These are aspects which instilled confidence and trust in the minds of the customers dealing with financial Institutions. The situation, however, gets worrisome when these same bankers and personnel of Financial Institutions carry to the public information concerning their customers and the state of their finances which were and are at all times expected to be secret. The disclosure of customers’ information have often been seen as a breach of the bank’s duty of confidentiality and to an extent has affected the rate of financial inclusion by the unbanked and under banked in certain societies around the world and in some Cameroonian localities. This situation has even worsened with the advent of electronic banking coupled with the movement of illegal funds from Money Laundry and Cyber Criminality putting in question and jeopardy the trustworthy nature of Financial Institutions by some customers. These criminal issues during court proceedings most often warrant that information about banking customers and the state of their finances be release so as to unveil criminal acts and punish fraudsters, which often have been considered by customers to constitute a breach of the bank’s duty of confidentiality which the customers vehemently castigate. This paper thus aims at investigating if the bankers’ duty of confidentiality is an absolute duty.

Keywords: Bank, Banker, confidentiality, customer, financial institution, secrecy, trust, illegal funds, criminal issues

[This article belongs to Journal of Banking and Insurance Law(jbil)]

How to cite this article: FON Fielding Forsuh, Bafuke Evarestus NJI , Bank’s Duty of Confidentiality under Cameroonian Law: Absolute or Qualified? jbil 2023; 03:8-19
How to cite this URL: FON Fielding Forsuh, Bafuke Evarestus NJI , Bank’s Duty of Confidentiality under Cameroonian Law: Absolute or Qualified? jbil 2023 {cited 2023 Mar 03};03:8-19. Available from: https://journals.stmjournals.com/jbil/article=2023/view=98172

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References

  1. The Swiss hold that the duty is not negotiable due to the fact that it attracts customers; it is a source of employment, refills the finances, encourages tourism, etc.
  2. Smart (P.E.) and Chorlely., (1990), Leading Cases in the Law of Banking, Sweet & Maxwell, London 6th Ed, p.6.
  3. Members of the board of directors or supervisory council of credit establishment, any person participating in the management of the bank or employed by the latter, is bound by professional secrecy under conditions and penalties laid down for the purpose by the Penal Code of the host State. See article 42 of the Annex to the 1992 Convention.
  4. Section 4 of Ordinance No. 85/02 of 31st August 1985 Relating to the Operation of Credit Establishments states that « each member of the board of directors and any person who, in any capacity, takes part in the running, management or supervision of a credit establishment, or who is an employee thereof shall be bound by professional secrecy.”
  5. Law no 2003/0047 of 21 April 2003, relating to Banking Secrecy. For a detail study of this law, see TCHABO SONTANG (H.M.), ˝Le Regime Juridique du Secret Bancaire en Droit Positif Camerounais” (2010), 81 Juridis Périodique, 47-59.
  6. 2003 Law Relating to Banking Secrecy in Cameroon.
  7. Article 4 and 12 of the annex Convention on the Harmonization of Banking Regulations in the Central African States.
  8. Ambe Kingsly, N., (2017), “Combating Corruption in Africa’s Banking Business: The case of the CEMAC Region”, p.21, Master’s Thesis Faculty of Law and Political Science, University of Dschang, Unpublished.
  9. (1924) 1K.B.461
  10. Lawrence, F. M. (2014), Principles of Banking Law in Cameroon, Slopp, Bafoussam, ISBN 978-9956-621-64 5, P.25.
  11. Ordinance no 85/002 of 31st August 1985 Relative to the Exercise of the Activities of Credit Establishments.
  12. Lawrence, F.M. Supra, P.27.
  13. Section 310 and 311 of Law No 65-LF-24 of 12 November 1965 and Law No.67-LF-1 of 12th June 1967 instituting the Cameroon Penal Code. “Who so ever without permission from the person interested in secrecy reveals confined facts”.
  14. Tchabo Sontang H.M., Op. cit note 5, p. 48.
  15. Ibid.
  16. Naledi Thabang M, (2012): “The Challenges in Safeguarding Financial Privacy in South Africa,” Journal of International Commercial Law and Technology, Vol.15. Issues 3, p.248.
  17. William Parker W., (1991), “Anonymous Bank Accounts: Narco-Dollars, Fiscal Fraud, and Lawyers”, Fordham International Law Journal, Vol.15, issues 3, p.652.
  18. Ohn Clover., (2001), « Is breach of confidentiality a fiduciary wrong? Preserving the reach of Judge made law” Legal Studies, Vol. 1. No.4, 2001.
  19. Chaikin, D., (2015), “Policy and Fiscal effects of Swizz Bank Secrecy”, Revenue L.J, Vol 15, P. 92.
  20. Suit No HCB/106/87 (unreported). The defendant bank discovered that the sum of 70.000frs CFA had been fraudulently withdrawn from the plaintiffs account. In fact, cheque No 8174650 had been detached from his cheque book and used to withdraw the said amount.
  21. Suit No BCA/39/83 (Unreported), the appellant Vincent Dango was a customer of the respondent bank. He had a credit balance of 2.124849 Frs. CFA in his account on the 27th of June 1980.Since then he had never asked for a loan or an overdraft from the respondent bank. Subsequently the manager of the bank presented him with a statement showing a debit of 328.5890 Frs. CFA. In the face of his statement he presented cheque No 1258916 amounting to 1.112.250frs CFA drawn in the favor of one George Nchinda on the 23rd March 1982 for payment and the respondent confiscated that sum. Justice A.N Njamsi held that there was no justification for the confiscation of the appellant’s cheque of 1.112.250frs CFA by the manager of the respondent bank. He therefore ordered that the plaintiff was entitled to his credit balance of 201.240.849 Frs. CFA and the value of the confiscated cheque of 1.112.250frs CFA.
  22. Ibid.
  23. Ibid.
  24. See Weerasoonia, WS., (1997), Law Relating to Banking and Interrelated services, Colombo: Institute of Bankers of Sri Lanka, 1997, p.93.
  25. Shey Nchanji J, (2016), “The Breach of Bankers Duty of Confidentiality in the CEMAC Zone: The case of Cameroon” Master’s Thesis, Faculty of Law and Political Science, University of Dschang, p.27, unpublished.
  26. Oliver Fridman, (2011), «Banking Secrecy in Singapore » les enjeuxjuridique du secret bancaire, vol.5, p.23.
  27. See section 5(1) of the 2003 Law Relating to Banking Secrecy in Cameroon.
  28. In Tournier v. National Provincial Bank and Union Bank of England, Atkins LJ and Bankes LJ were of the opinion that the duty of secrecy goes beyond the statement of the account, that is whether there is a debit or credit balance, and the amount of balance, it must extend at least to all the transactions that goes through the account and the securities, if any given in respect of the account. it further extends to information obtained from other sources that the customers actual account. If the occasion upon which the information was obtained arose out of the banking relations of the bank and its customers. See further Nah Fuashi T., (2013-2014), Lecture notes on Banking Law, P.42, University of Dschang.
  29. Section 310 of law No2016/007 of 12 July 2016, amending the Penal Code of Cameroon provides that whoever without permission from the person interested in secrecy reveals any confidential fact which has come of his knowledge or which has been confined to him solely by reason of his profession or employment in an industrial or commercial undertaking shall be punished with imprisonment for from 3months to 3years or with fine of from 20,000FCFA to 100,000FCFA or with both such imprisonment and fine. Section 311 on commercial confidence provides same as section 310 with the exception at the level of the fine which is 100.000FCFA to 5000.000FCFA.
  30. Tchabo Sontang (H.M.), (2010), « Le Regime Juridique du Secret Bancaire en Droit Positif Camerounais » 81 Juridis Périodique, p.51.
  31. Shey Nchanji J., “The Breach of Bankers Duty of Confidentiality in the CEMAC Zone: The case of Cameroon”, Op. cit, 2016, p.31.
  32. Tchabo Sontang H.M., Op. cit, note 26, p.52.
  33. See section 5(1) (a) of the 2003 Law on Banking Secrecy, see also Kelese Nshom, Regional Integration Laws and Banking Security in Cameroon, PhD Thesis, University of Dschang, p.130.
  34. See section 7 of the 2003 Law on Banking Secrecy.
  35. Kelese Nshom., (2014), Regional Integration Laws and Banking Security in Cameroon, PhD Thesis, University of Dschang. p.130.
  36. See section 7 of the 2003 Law.
  37. Op. cit, note 11.
  38. As Akins J opines in Tournier v. National Provincial Bank and Union Bank of England “I think it extends beyond the period when the account is closed or ceases to be an active account. It seems to me inconceivably that either party will contemplate that once the customer had closed his account, the bank was to be at liberty to divulge as it pleased the particular transaction which he had conducted for the customer whilst he was such”.
  39. Kelese Shom .G. Op. cit, note 31, p.130.
  40. Ibid p,131.
  41. Ibid.
  42. Section 310 of the Cameroonian Penal Code.
  43. See ordinance no85/002 of 31st August 1985, relating to the operation of credit establishments.
  44. See Law no2003/004 of 21st April 2003, Relating to Banking Secrecy in Cameroon.
  45. Guidelines for providers of electronic communication services. Available at https://eng.nkom.no accessed 18th November 2018.
  46. Kelese Nshom G., (2014), Regional Integration Laws and Banking Security in Cameroon, PhD Thesis University of Dschang, Faculty of Law Political Science, P, 129, unpublished.
  47. Abia Rita Ajoh., 2017: “Banking Secrecy and the Fight against Corruption in Cameroon” Master’s Thesis, Faculty of Law and Political Science, University of Dschang, p.27, unpublished
  48. The exceptions keep on multiplying with the inflation of certain state organs and even those independent of the State, see TEISSIER (A.), Le Secret Professionel du Banquier, p.27.
  49. Since the declaration of the conference of Head of States of the CEMAC in N’Djamena on the 15 December 2000, to solemnly put everything in place to fight against money laundry in member States of CEMAC, these agencies and authorities in the fight against financial crimes have kept on increasing (see for example GABAC and National authorities such as ANIF in Cameroon), and instances where banking secrecy will be waived have accentuated.
  50. Voir Règlement no 02/02/CEMAC/
    UMAC/CM du 15 Mars 2002 portant Organisationet Fonctionnement du Grouped’ Actioncontre le Blanchementd’ Argent en Afrique Centrale (GABAC).
  51. Article 8 -25 of Law No.2003/004.This law brings out circumstances under which banks will be compelled to do disclosure.
  52. This will include cases where a garnishee order is served upon a bank and also cases where information is demanded by the Judiciary or monetary authorities.
  53. Weld Blundell V. Stephens, (1920) A.C.956.
  54. See 310 and 311 of Law No 65-LF-24 of 12 November 1965 and Law No.67-LF-1 of 12th June 1967 instituting the Cameroon Penal Code provides for the fact that whoever without permission from the person interested in secrecy reveals any confined fact…”

Regular Issue Open Access Article
Volume 03
Issue 01
Received April 13, 2020
Accepted May 14, 2020
Published March 3, 2023