WALI, J.S.C. (Delivering the Leading Judgment):

REASONS FOR JUDGMENT

On the 22nd October, 1990, I dismissed this appeal and indicated to give my reasons for doing so today. By a Writ of Summons filed in the High Court of the Port Harcourt Judicial Division on 17th October, 1983, the plaintiff, High grade Maritime Services Limited, claimed against the defendant, First Bank of Nigeria Limited, situate at Aba Road Port Harcourt, as follows:

"The plaintiff‘s claim against the defendant is the total sum of N1,568,966.35 (One million, five hundred and sixty-eight thousand, nine hundred and sixty-six naira, thirty-five kobo) being money had and received by the defendant to the use of the plaintiff at Port Harcourt within the jurisdiction of this Honourable Court in the course of the defendant's business as a banker and in respect of the plaintiff's Current Account No.02025984 with the defendant's branch at Aba Road, Port Harcourt, common or popularly known as the Airport Branch.

The plaintiff has closed the said account with the defendant and demanded the aforesaid sum of money being the balance standing to the plaintiff‘s credit in the said account.

The defendant has since failed and still refused to comply with the plaintiffs demand aforesaid. WHEREOF the plaintiff has suffered damage and claims against the defendant the said debt or liquidated sum of N1,568,966.35 (One million, five hundred and sixty-eight thousand, nine hundred and sixty-six naira, thirty-five kobo) being money had and received by the defendant to the use of the plaintiff."

The defendant denied the plaintiffs claim. Pleadings were ordered, filed and exchanged and issues joined on material facts. At the end of the hearing of the case, the learned trial Judge, Fiberesima, J., delivered a reserved judgment in which he concluded -

"From the evidence before me and particularly from the conscious admissions by the defence of receiving the cheque and proceeds and of exhausting the cheque and of having the exhausted cheque in its custody, I hold that as between the plaintiff and its bankers the amount is recoverable by the plaintiff as money paid by plaintiff. Accordingly there must be judgment for the plaintiff for the amount claimed.

The defendant is to pay to the plaintiff the sum of N1,568,966.35 (One million five hundred and sixty-eight thousand, nine hundred and sixty-six naira, thirty-five kobo) being money had and received to the use of the plaintiff."

The defendant, aggrieved by the judgment, appealed against it to the Court of Appeal, Enugu Division. In a unanimous judgment of that court delivered by Kolawole, JC A., it allowed the appeal and concluded -

"It was established beyond doubt that the appellant did not receive credit for the sum of N1,568,946.35 for the reasons which I have earlier given. The result is that this appeal succeeds and the judgment of Fiberesima, J. dated 13 September, 1984 is set aside. In its place judgment is hereby entered for the respondent in the sum of N19.50 representing the balance standing to its credit with the appellant as at 16th August, 1983. The appellant is awarded costs of N1,000.00 in the lower court and N500.00 in this court inclusive of N207.00 out of pocket expenses."

The plaintiff has now appealed to this Court.

The facts involved in this case have been admirably and adequately stated in the lead judgment of the Court of Appeal by Kolawole, JCA. They are as follows:

"On 10th of August, 1983 the respondent opened a current account with the appellant with a sum of N400.00. On 11th August, 1983 the respondent deposited a -First Bank of Nigeria cheque Ikeja Branch for the sum of N1,568,946.35 into its current account at the appellant's Airport Branch Port Harcourt. The cheque was said to have been drawn by Parkinson Nigeria Limited on the Ikeja Branch of the First Bank of Nigeria limited. The respondent's account was credited with that amount the same day but as it is usual in banking practice, the respondent's account was debited with the same amount because the amount was very heavy. The cheque was then sent to Ikeja for collection. This was to ascertain whether the cheque was a genuine cheque or not. The response from Ikeja that payment had been effected was sent in an unusual way of a mere paper transaction, whereas the usual practice whenever an amount was over N2,000.00 was that the message conveying payment would be by coded telegram. Because of the unusual manner in which the Ikeja Branch advised payment, the appellant suspected fraud and they sent a telegram to the Ikeja Branch for confirmation whether Exhibits 12 and 12A which conveyed that the cheque had been cleared originated from them. They also sent a letter and Ikeja Branch replied by Exhibit 13 on October 12, 1983 that Exhibits 12 and 12A were not from them and that the signature on them was forged.

The appellant also wrote to verify whether Parkinson Nigeria Limited, the company alleged to have been the drawer of the cheque had an account with the Ikeja Branch of the First Bank of Nigeria Limited, the Ikeja Branch replied by Exhibit 14 that there was no such account.

After these enquiries when Benedict Ume, who testified as the Managing Director of the respondent came with a cheque to withdraw N63,000.00 from the account, the appellant invited the Police and he was arrested. At the time of his arrest he had N19.50 to his credit having earlier withdrawn N80.00 on the 16th August, 1983."

Henceforth the plaintiff and the defendant will be referred to as the appellant and the respondent respectively.

Briefs of arguments were filed and exchanged which were orally elaborated upon. The appellant formulated 8 issues in his brief while the respondent formulated only one issue. I prefer to adopt the approach of the respondent as regards the issue for determination because not only does it embrace the relevant issues raised by the appellant in his brief, but it is also the main issue that has arisen for determination in this appeal. In my view the issue can be reframed as follows -

"Whether the Court of Appeal was right in its conclusion from the evidence adduced at the trial, that the appellant failed to prove that the Port Harcourt Branch of the respondent had collected the proceeds of a cheque for N1,568,946.35 from its Ikeja Branch for crediting to the appellant's account at its Port Harcourt Branch situate along Aba Road."

Before I go into the main issue as refrained above, I wish to specifically deal with issues Nos.6 and 7 in the appellant's brief. It is on the allegation of fraud by the appellant. They read –

"2.06. Was fraud specifically pleaded, particularised and proved beyond reasonable doubt by the respondent against the appellant at the trial in the High Court of the Rivers State in Port Harcourt before Fiberesima, J.?

2.07 If fraud was not proved against the appellant, what then was the respondent's contractual obligation to the appellant and had the respondent discharged the contractual obligation to the appellant?"

It was the submission of learned counsel for the appellant that since the respondent did not specifically plead fraud, the Court of Appeal misdirected itself in law when it made a finding that fraud was established. He argued that it was not for the appellant to prove his innocence by adducing evidence when the respondent who raised the fraud did not prove it. He referred to Sections 134, 137(1), 138 and 141 of the Evidence Act and also the decisions in Usenfowokan v. Idowu (1969) 1 ALL NLR.125: Igbinosa v. Aiyobagbiegbe (1969) 1 All NLR.99; Ornoboriowo v. Ajasin (1984) 1 S.C.206; (1984) 1 SCNLR 108; Fabunmi v. Agbe (1985) NWLR. (Pt.2) , 299; NIPC. v. B.W.A (1962) 1 AUN.L.R.556; [1962] 2 SCNLR 324; Yassin v. Barclays Bank (1968) NMLR 380 and Mobil Oil v. Coker (1975) S.C. 175.

In reply to the submissions above the respondent contended that the issue of fraud was raised collaterally and evidence adduced to show that the documents, that is, the Parkinson cheque, Exhibits 12 and 12A which are the "cheques for collection advice of Fate Form" and "the inter Branch Transfer Voucher" respectively were not genuine.

It is trite law that where fraud is alleged, it must be specifically pleaded and particulars of the fraud given to enable the party defending the allegation understand the case he is facing and prepare his defence. See Davy Bros. v. Garret (1877) 7 Ch. 473 and UnitedAfrica Co. Ltd. v. Taylor (1936) 2 W.A.C.A. 67. On the issue of fraud, the respondent averred in the following paragraphs of his statement of defence that -

"7. The defendant vehemently denies paragraph 10 of the statement of claim and in further answer thereof, the defendant avers that it neither told the plaintiff nor wrote to the plaintiff to that effect, instead, it was the Managing Director of the plaintiff Company, Mr. Benedict Umeh, who came to tell the defendant that the cheque had been paid, that even increased the defendant's doubts.

8. The defendant denies the averment contained in paragraph 11 of the statement of claim. And  in further answer thereto, the defendant avers that payment on the cheque in favour of the plaintiff company's Managing Director for 63,000.00 (Sixty-three thousand naira) was refused by the defendant because there was no confirmation that the cheque for N1,568,946.35 has been paid at the Ikeja Branch of the defendant's Bank, where it was sent for collection.

13. Paragraph 15 of the statement of claim is denied. The balance standing to the credit of the plaintiff company's account is N20.00 (twenty naira) and not N1,568,966.35, since the N1,568,946.35 was not paid or credited into the plaintiff company's account. This being so, because there was no genuine proof of such payment from the First Bank of Nigeria Limited, Ikeja Branch.

16. The defendant again denied paragraph 18 of the statement of claim. In further answer thereto, the defendant avers that the cheque for N1,568,946.35 drawn on Ikeja Branch of the defendant bank, cannot be produced by the defendant since it was not returned to the defendant. Furthermore, the Ikeja Branch of the defendant company claims no knowledge of the said cheque since it did not emanate from them. The said Ikeja Branch did, however, confirm that the whole transaction was fraudulent in their letters dated the 12th October, 1983 and 9th November, 1983 and will be founded upon at the trial."

The averments in the paragraph, supra raise the issue of fraud and provide sufficient particulars for the appellant to understand the case he was facing. See U.A.C. Co. Ltd. v. Taylor (1936) 2 WACA 67 particularly at 71 (Privy Council). The manner of the pleading may look inelegant, but certainly not inadequate to inform the appellant of the nature of the case he was to face and defend.

The appellant also made reference to Sections 134, 137(1) 138 and 141 of the Evidence Act. These sections in general deal with burden of proof. In civil cases the burden of proving a particular fact is fixed by the pleadings. Where a commission of crime is directly in issue, the party alleging must prove it beyond reasonable doubt. See Benson Ikoku v. Enuoh Oli (1962) 1 ALL NLR 194; [1962] 1 SCNLR 307 and also section 137(1) of the Evidence Act.

In the present case the respondent called DW. 1, the Branch Manager of the respondent who gave evidence as to the system in operation in the Bank when a large amount is paid by a customer into his account by a cheque. He said -

"On 11th August, 1983, Mr. Ume came and deposited an Ikeja cheque for N1,568,946.35. It was said to have been drawn by one Parkinson Nigeria Limited drawn on Ikeja Branch of First Bank. We credited the account the same day. Exhibit 4 shows that his account was credited with the Ikeja cheque, after crediting his account we then debited it because the amount is very heavy. We debited the account and then sent the cheque to Ikeja for collection."

The witness went on to explain the step next taken if the paid in cheque is drawn on another Bank or another branch of the respondent's Bank. And since the cheque in dispute was drawn on another branch of the respondent which is situate outside Port Harcourt, he said: -

"We sent it to Ikeja to ascertain whether the cheque was a genuine cheque if it is, they would reply to us that the amount has been paid. We Sent it to lkeja for collection, it is not Port Harcourt cheque. The account on which the cheque is being drawn is at Ikeja. We received the proceeds of the payment which means the cheque has been paid, but the proceeds was sent by paper which was unusual. Such an amount over N2,000.00 should be by coded cablegram not just paper. The one I received was not coded.”

This made him become suspicious of both Exhibits 12 and 12A as a result of which letters were sent to the Ikeja Branch of the respondent for clarification and confirmation. The Ikeja Branch of the respondent replied by Exhibits 13 and 14 respectively in which not only did they deny the genuineness of Exhibits 12 and 12A, but also that Parkinson Nigeria Limited, the alleged drawer of the cheque in favour of the appellant, had no account with the respondent's Branch at Ikeja.

DW.2, who was at the material time the attempted fraud was perpetrated and was working in the respondent's Ikeja branch, denied ever receiving a cheque for N1,568,946.35 drawn in favour of the appellant. When Exhibits 12 and 12A were shown to him he denied also that they emanated from the respondent's Ikeja Branch and that the purported signatures on them were not that of Mr. Adesote (D.W.3) who was then his accountant and was therefore familiar with his signature. On Parkinson Nigeria Limited, the alleged drawer of the disputed cheque, DW2 testified that -

"I was at Ikeja branch for four years. I do not know any customer name Parkinson Nigeria Limited. I am very sure about it, there is no such account. The cheque for N1,568,946.35 was never received by our branch when I was there. Because Parkinson has no account no proceeds were remitted to Port Harcourt. I have not seen the cheque for N1,568,946.35. We did not see the cheque. We did not give value for the cheque.

DW 3, Thompson Adesote, who was at the material time the accountant at the Ikeja Branch of the respondent, denied ever signing Exhibits 12 and 12A. He also confirmed that Exhibits 12 and 12A do not bear the signatures of Mr. Osi with which he is also familiar. On the cheque for N1,568,946.35, DW 3 testified thus -

"I cannot recollect having seen the cheque for the amount of N1,568,946.35 and no proceeds were remitted to Port Harcourt of that amount."

Mr. Osi, DW.4 denied signing Exhibits 12 and 12A. He said in his evidence ". An 1983 around August I was in charge of Cantonment of 1st Bank, Main tend, Lagos, in the Military barracks, I was in Cantonment branch from 6th September, 1982 to February 19th, 1984. The signatures bearing my name on Exhibits 12 and 12A are Dot mine. So that at the time the signature were written I was not at that Ikeja branch of First Bank."

DW 6, Alhaji Idris Mohammed, admitted knowing PW1 very well but denied knowing the company Highgrade Maritime Limited.

In rebuttal of this strong and conclusive evidence of fraudulent motives, the Only evidence adduced by the appellant was that of PW 2, Benedict Ume, its Managing Director, whose only defence to the attempted fraud is that he paid the cheque for N1,568,946.35 on 11th August, 1983 into the appellant's account with respondent's branch situate at Port Harcourt Aba Road, drawn in favour of the appellant by a so called Parkinson Nigeria Limited on its account with Ikeja Branch of the respondent. He said -

"I remember 10th day of August, 1983, that was the day the plaintiff opened an account with the defendant company with N100.00. I also remember 11th August, 1983 that was the day the plaintiff paid into defendant company a cheque for N1,568,946.35. The cheque was dated 20th July, 1983. The N100.00 and the N1,568,946.35k was paid in with Teller, these are the tellers admitted without objection as: teller of 10/8/83 for N100.00 exhibit 3; teller of 11/8/83 for N1,568,946.35 exhibit 4. After the payment of the cheque for N1,568,946.35 I continued to go to the defendant company to know whether it had been cleared or not, and on 22nd September, 1983, 1 was told by the Bank Manager that the cheque had been cleared, on that 11th September, 1983. The defendant company advised the plaintiff in writing that the cheque had been sent to Ikeja for collection, the written advice is admitted without objection as exhibit 5. On the 16th August, 1983, plaintiff company withdrew N80.00 from the account. Then on 23rd September, 1983 the defendant company informed the plaintiff that the cheque had been cleared so the plaintiff issued a cheque for N63,000.00 and presented for payment, the bank instead of paying the N63,000.00 called in the police, the cheque was not returned to the plaintiff, the money was also not paid."

He admitted under cross-examination that Parkinson Nigeria Ltd. issued the 1½   Million Naira cheque to appellant though he did not know the latter's office in Ikeja. He further testified -

"Parkinson Nigeria Limited issued the 1 ½ Million Naira cheque to the plaintiff company, at that time with head office at lkeja, I cannot remember the address off head, their engineer came down here. I have not been to their office at Ikeja. I gave them receipt. I have not given them any invoice. I did not know that the cheque did not originate from a cheque book which belong to Parkinson Nigeria Limited. I did not know that it originated from a cheque book issued to an individual. I was charged to Chief Magistrate Court, Port Harcourt in charge No. PMC/292C/83 in my name as an individual, Benedict Ume and not in respect of the plaintiff Company or connected with it. I pleaded not guilty to any transaction of N63,000.00 I do not know that I have not got 1½ Million Naira with the defendant company."

It is to be noted that it was part of the respondent's case that the cheque was drawn from a cheque book issued to an individual and not to Parkinson Nigeria limited. This was contained in Exhibit 14 tendered and admitted in evidence through DW 1. Exhibit 14 shows that the cheque purportedly drawn by Parkinson Nigeria Limited was from a cheque book No.IE/1647301 - 400 issued to one Gregory Batuboh Umoh, an employee of Messrs. Cadbury Nigeria Limited whose account with respondent's Branch at Ikeja, opened on 25th February, 1982, has been virtually dormant with a negligible balance. The appellant did not call Parkinson Nigeria Limited to prove the authenticity and genuineness of the cheque purportedly issued by them, which from the evidence adduced appeared to have been lost between Port Harcourt and Ikeja branches of the respondent. Looking at the evidence adduced by the respondent in proof of the allegation of fraud, it is now for the appellant to call evidence to exonerate itself. P.W. 1 is the Managing Director of the appellant. This burden is shifted on the appellant by Section 135, 138 and 140 of the Evidence Act. See Johnson and Anor. v. Maja & Ors. (1951) 13 WACA 290; Aouad v. Nzimiro & Anor 10 WACA 73 and Nigerian Marihine Services Ltd. v. Bello Afolabi (1978) 2 SC. 79 at 84 where this Court emphasized that -

"An the arena in a civil case, the onus of proof does not remain static, but shifts from side to side. The correct position in law is that the onus of adducing further evidence is on the person who would fail if such evidence was not produced."

In my view and having regard to the evidence adduced in this case, the Court of Appeal was perfectly right to arrive at the following conclusion -

"Now learned senior Advocate contended that no issue was raised in the pleadings as to whether or not Parkinson Nigeria Limited had or had not an account with the Ikeja Branch of the appellant Bank. It seems to me that learned Senior Advocate has overlooked the fact that this was plaintiff's/respondent's case. It came out of its principal mouth-piece that Parkinson Nigeria Limited issued the cheque in question. The respondent did not prove that, it was within the knowledge of the appellant that the cheque presented for payment did not belong to Parkinson but to Gregory Batuboh Umoh and that as a matter of fact

Parkinson Nigeria Limited who was alleged to have issued the cheque on its Ikeja branch account had no such account with the appellant."

The main issue contains complaints against -

(a) the reversal by the Court of Appeal of the finding of fact by the trial court and

(b) the Court of Appeal subsequent findings on the evidence that the appellant had failed to prove his case and therefore did not deserve to have the judgment given in his favour by the trial court.

It was the submission of the appellant that the respondent did not adduce legal and admissible evidence on which the Court of Appeal could rely to make the findings and the conclusion it arrived at. Learned counsel made reference to Exhibits 12 and 12A and submitted that since these were made by the respondent, their contents could not be construed to the detriment of the appellant. On the unaccounted cheque for 1½ Million Naira, allegedly drawn by Parkinson Nigeria Ltd., in favour of the appellant, it was his submission that the duty is on the respondent to call Parkinson Nigeria Limited to disprove the genuiness and authenticity of the cheque. He further submitted that the duty is on the respondent to call Mr. Gregory Batuboh Umoh, the customer of the respondent and from whose personal cheque book the controversial cheque was issued, to testify and substantiate the respondent's case. He referred to Section 148(d) of the Evidence Act and urged this Court to invoke its provision against the respondent in the circumstances of this case.

On Exhibits 13 and 14, it was the contention of the learned counsel for the appellant that they were suspect as the former Exhibit 131 was a fabrication in anticipation of the proceedings which the appellant had threatened to take against the respondent while the latter (Exhibit 14) was made after the commencement of the court proceedings by the appellant. He described both Exhibits 13 and 14 as very desperate efforts by the respondent to cover-up and avoid liability. He then referred to the evidence adduced by the respondent and submitted that since the respondent had admitted receiving the controversial cheque and which was never returned to the appellant or dishonoured, the respondent had no right to debit the appellant's account already credited with the proceeds of the cheque. It was also the submission of learned counsel for the appellant that there was no pleading that Exhibits 12 and 12A were not signed by persons authorised to sign them and therefore the evidence of DW 2, DW 3, DW 4 and DW 5 go to no issue. He submitted that it was an error of law on the side of the Court of Appeal to rely and base its conclusions and judgment on documents of doubtful evidential value and which were inadmissible under section 90(3) of the Evidence Act He urged this court to allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the trial court.

In reply to the submissions above, learned counsel for the respondent submitted that Exhibits 12 and 12A were properly admitted in evidence and that it was self-defeating for the appellant to say that Exhibits 12 and 12A were not admissible as the learned trial Judge heavily relied on them to give judgment for the appellant.

Exhibits 12 and 12A were given in evidence by the respondent to prove that the whole transaction was nothing but an attempt to defraud the respondent of the sum of 1½ Million Naira purportedly paid by the appellant into his account. They were admitted through DW 1 without objection. The controversial cheque for N1,568,946.35 was paid into the appellant's account by PW 1 on 11th August, 1983, It was, as it is the normal banking practice, credited to the appellant's account which was immediately debited pending clearance. It was immediately sent to Ikeja Branch of the Respondent on which it was drawn. Thereafter DW1 said -

"We received the proceeds of the payment which means the cheque has been cleared, but the proceeds was sent by paper which was unusual. Such an amount over N2,000.00 should be by coded cablegram not just paper. The one I received was not coded. These are the documents we received as purported payment advice 'Cheques for collection Advice of Fate Form' dated 12/08/83 and 'Inter Branch Transfer Voucher' dated 2/9/83 admitted without objection as Exhibits 12 and 12A respectively. It is usual to use Exhibits 12 and 12A for such heavy amount, for such heavy amount coded cable was normally used, that is why I say purported proceeds. We suspected there was fraud so we sent a telegram to Ikeja Branch of First Bank to confirm that Exhibits 12, and 12A came from them, they denied that they were not from them." To substantiate the evidence of DW 1, the respondent called DW 2, DW 3 and DW 4 each of whom affirmatively testified that Exhibits 12 and 12A were not genuine. The testimonies of these witness" i.e. DW 1 to DW4 were not discredited by the appellant.

Even learned counsel for the appellant, Chief Muama, in his final address in the trial court, did not attack the admission of Exhibits 12 and 12A in evidence, but relied on them to support the appellant's claim. At the expense of repeating myself, the duty was on the respondent to prove fraud and in the course of that Exhibits 12 and 12A were tendered and admitted.

Without these two exhibits, the appellant would have nothing to rely on to claim the purported and abortive claim of the clearance and payment of the proceeds of the controversial cheque. Where a document is admissible in civil proceedings under certain conditions and same is admitted with procedural defect but without objection, the appeal court will not upset the trial court's decision solely on the ground of inadmissibility of such a document. See Olukade v. Alade (1976) 1 All N.L.R. (Pt. 1) 67.

Section 93 provides that -

"93. (1) Primary evidence means the document itself produced for the inspection of the court.

(2) Where a document has been executed in several parts, each part shall be primary evidence of the document.

(3) Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it."

The main contention of the appellant under subsection (3) of section 93 supra is that Exhibits 13 and 14 were made by persons interested and in anticipation of proceedings against the appellant.

It is not in all circumstances where a servant of an employer wrote a document on the latter's behalf that it becomes inadmissible by virtue of section 90(3) of the Evidence Act. Exhibits 13 and 14 were written by D.W. 2 as a servant of the respondent in reply to an inquiry sent from the respondent's Bank to ascertain the genuineness of Exhibits 12 and 12A before honouring the appellant's cheque - Exhibit 7. This in my view is not tantamount to making D.W. 2 a person interested in the proceedings as contemplated in section 90(3) of the Evidence Act.

The mere fact that he was the author of Exhibits 13 and 14 in his capacity as servant of the respondent, and which is a party to the present suit, did not make him a party interested, as he had no direct interest in the matter. See Bearmans Ltd. v. Metropolitan Police District Receiver (1961) 1 W.L.R.634; The Atlantic and the Baltyk (1945) 62 T.L.R,461. A person is held not to be interested under subsection 3 of Section 90 of the Evidence Act when he has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest, but completely detached, judicial impartial independent - See Evon and Evon v. Noble (1949) 1 K.B.222. See also Aguda - Law and Practice Relating. to Evidence, pages 168 - 175, particularly 172 - 175, paragraphs 14-06,14-08, and 14-09. Is that true of the situation in this case? My answer will certainly be in the affirmative, I need not repeat the evidence of the appellant adduced in proof of his claim against respondent, suffice it to say that all that was done was to prove payment of the controversial cheque drawn by the alleged Parkinson Nig. Ltd. on its account with respondent's lkeja Branch in favour of the appellant. When the respondent through the vigilance of D.W.1 discovered that the purported clearance of the controversial cheque was a fraud, the duty shifted on the appellant to adduce evidence to prove -

(a) the genuineness of the cbeque by Parkinson Nigeria Ltd-

(b) that Parkinson Nigeria Ltd. had sufficient funds with the respondent in its Ikeja account of the respondent's Branch to cover the controversial cheque.

Subsection (it) of Section 148 of the Evidence Act deals with failure to call evidence and not failure to call a particular witness where a party can prove his case without calling such a witness, See Tawaku v. M.M. Kassim (1969) 1 N.M.L.R. 148. The respondent had called witnesses that proved that not only was there an attempt to defraud it of the amount being claimed on the controversial cheque but also that Parkinson Nigeria Ltd. had no account with the respondent at its Ikeja Branch. It was then for the appellant to call evidence to rebut the presumption which it could only do by adducing evidence to the contrary. By refusing to do that, it can safely be presumed that such evidence would, if given, be unfavourable to the appellant. The courts are called upon to presume the existence of one fact from the existence of a proved fact where such presumption is irresistible, that is when there is no other reasonable presumption which fit all the facts. See R. v. Okereke Iregbu 4 W ACA 32.

In the circumstance, the respondent had no duty to honour Exhibit 7 when it had satisfied itself that there was no sufficient money in the appellant's account to meet the demand.

It is abundantly clear that the learned trial Judge had failed in his duty to property consider the evidence before turn which led him to drawing wrongful conclusions from the evidence he accepted See Ebba v. Ogodo (1984) 1 SCNLR 372; Okolo v. Uzoka (1978) 4 SC.77 at 86, per Obaseki, JSC.

In my view the Court of Appeal was perfectly right and justified in reevaluating and re-consider if the whole evidence which the learned trial Judge had failed to do, in-order to arrive at a just decision. The findings of fact and the conclusions arrived at by Kolawale, J.C.A., in this case, cannot be faulted. See Abinabina v. Enyimadu (1953) 12 W.A.C.A. 171; (1953) &C.207 where the court commented on interference by the Court of Appeal with the findings of W of the trial court, as follows -

“1. In order to obviate the practice them must be some miscarriage of justice or violation of sound principle of law or procedure which result in a miscarriage of justice.

2. The term ‘miscarriage of justice’ means a prejudice to chance of the other party to get the judgment of the court in his favour.”

See also Amida & Ors. v. Oshoboja (1984) 7 S.C. 68 at 89; Woluchem v. Gudi (1981) S.C.291 at 326; and Okuoja v. Ishola (1982) 7 S.C. 314 at 349.

The rules of procedure regarding the filing of pleadings is meant to assist the parties to make clear, to one another, their respective cases so that each one can adequately prepare his evidence. Once this is achieved, the court will not adhere to mere technicalities raised by ingenuity of counsel to pervert the course of justice. The court should not be used and manipulated through technicalities, as a vehicle for perpetrating injustice. I entirely endorse the expression of my learned brother Kolawole, JCA that -

"no where in the rules of pleadings will the court of law and equity allow technicalities of pleadings to be employed as an engine of fraud.”

This appeal on the whole lacks merit. It fails and is accordingly dismissed. The judgment and consequential orders of the Court of Appeal are hereby affirmed. N100.00 costs is awarded to the respondent in this appeal against the appellant.

A.O.OBASEKI, J.S.C.: On the 22nd day of October, 1990, this appeal came up for hearing and arguments of counsel were heard. After hearing counsel and studying the brief filed by the parties together with the record of proceedings and judgment in the court below, I dismissed the appeal for lack of merit and adjourned the reasons for the judgment till today. I now proceed to give them. But before now, I had the advantage of reading the draft of the Reasons for Judgment just delivered by my learned brother, Wali, J.S.C. and I agree with his opinions on all the issues raised in the appeal.

The appellant's claim was one for money had and received to the use of the appellant and in the terms set out in the writ reads:

"The plaintiffs claim against the defendant is the total sum of N1,568,966.35 (One million, five hundred and sixty-eight thousand, nine hundred and sixty-six Naira, thirty-five kobo) being money had and received by the defendant to the use of the plaintiff at Port Harcourt within the jurisdiction of this Honourable Court in the course of the defendant's business as a banker and in respect of the plaintiffs current account No. 02025984 with the defendant's branch at Aba Road, Port Harcourt commonly or popularly known as the Airport Branch.

The plaintiff has dosed the said account with the defendant and demanded the aforesaid sum of money being the balance standing to the plaintiff’s credit in the said account.

The defendant has since failed and still refused to comply with the plaintiff's demand."

The appellant succeeded in the High Court and in giving him judgment the learned trial Judge found and held as follows:

"From the evidence before me and particularly from the conscious admissions by the defence of receiving the cheque and proceeds and of exhausting the cheque and proceeds and of having exhausted the cheque in its custody, I hold that as between the plaintiff and its bankers, the amount is recoverable by the plaintiff as money paid by the plaintiff. Accordingly, there must be judgment for the plaintiff for the amount claimed.

The defendant is to pay to the plaintiff the sum of N1,568,966.35 (One million, five hundred and sixty-eight thousand, nine hundred and sixty-six naira, thirty-five kobo) being money had and received to the use of the plaintiff."