REV. FUNSO AKEJU & ORS v. ISAAC KAYODE (2014)

REV. FUNSO AKEJU & ORS v. ISAAC KAYODE

(2014)LCN/6763(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of January, 2014

CA/B/88/2009

RATIO

PROCEDURE: WHEN AN AMENDMENT CAN BE SOUGHT IN A PROCEEDING

WHETHER IT IS AT THE DISCRETION OF THE LITIGANT TO CHOOSE WHO TO SUE

Also, it is a discretion within the exclusive domain of a litigant to choose who to sue provided the issue in dispute can be settled among the parties before the court and where the appellants herein is of the view that the joining of Nigerian Army and Sergeant Muse is crucial they were allowed to bring application for joinder which was not done at the trial court. See Agbekoni v. Karren (2008) ALL FWLR (Pt. 406), 1970 at PP. 1987 – 1988. Per SOTONYE DENTON WEST, J.C.A

CIVIL LAW: WHETHER IN A CIVIL MATTER, A PARTY MUST PROVE HIS CASE ON A BALANCE OF PROBABILITY OR PREPONDERANCE OF EVIDENCE

EVIDENCE: EFFECT OF A CREDIBLE AND CONVINCING EVIDENCE

When the evidence in support of the plaintiff’s case is credible and convincing then no reasonable court would hold otherwise as doing otherwise would amount to a judicial somersault. See Obiaziakwor v. Obiaziakwor (2007) ALL FWLR (Pt. 371) 1602 at page 1618 paras F – G and Agienoji v. C.O.P., Edo State (2007) ALL FWLR (Pt. 367), at p. 906. Per SOTONYE DENTON WEST, J.C.A

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

1. REV. FUNSO AKEJU
2. MR. ABIOYE Appellant(s)

AND

ISAAC KAYODE Respondent(s)

SOTONYE DENTON WEST, J.C.A (Delivering the Leading Judgment): This is an appeal by the Defendant (now Appellants) against the decision of the Ondo State High Court sitting in Akure delivered by Honourable Justice O. O. Akeredolu on 28th September, 2008.

The learned trial justice granted all the reliefs sought by the plaintiff (now Respondent) against the 1st and 2nd Defendants. The Defendants not satisfied with the decision appealed to this court by their Notice of appeal dated 24th October, 2008. See pages 96-158 of the record of Appeal.

On the 14th day of March, 2011, the Respondent at the trial court had instituted an action against the appellants by a writ of summons at the registry of the court, claiming the reliefs set out below:

1. A declaration that the 1st Defendant has no disposable interest in respect of the plaintiff’s property situate, lying and being at Gaga Road, Oke-Aro, Akure covered by a certificate of statutory Right of Occupancy Registered as No.56 at page 56 in volume 309 at the Deeds Registry, Akure same having been mortgaged to Icon Limited (Merchant Bankers) which mortgage is yet to be discharged.

2. A declaration that the 1st Defendant has no disposable interest in respect of the plaintiff’s property situate lying and being at Gaga Road, Oke-Aro, Akure covered by a certificate of Statutory Right of Occupancy Registered as No. 56 at page 56 in volume 309 at the deeds Registry Akure the plaintiff having repaid the sum of N30,000.00 borrowed from the 1st Defendant on the 3rd day of August, 1999.

3. A declaration that the interest of 30% for month charged by the 1st defendant on the sum of N30,000.00 borrowed by the plaintiff from the 1st defendant sometimes 1998 is illegal and null and void.

4. A declaration that the purported sale of the plaintiffs property situate, lying and being at Gaga Road, Oke-Aro, Akure covered by a certificate of statutory right of occupancy registered as No. 56 at page 56 in volume 309 at the deeds registry, Akure to the 1st defendant via a loan agreement dated 12th January,

5. 1997 and an affidavit of sale dated 18th day of August, 1998 without the consent of the government first sought and obtained is void and of no effect as same is contrary to the provisions of the Land Use Act, 1978.

6. A declaration that the purported sale of the plaintiffs property situate, lying and being at Gaga Road, Oke-Aro, Akure covered by a certificate of statutory right of occupancy registered as No. 56 at page 56 in volume 309 at the deeds registry, Akure by the 1st Defendant to the 2nd Defendant without the consent of the Government first sought and obtained in accordance with the provisions of the Land Use Act, 1998, is null and void and of no effect.

7. An order nullifying the purported sale of the plaintiffs property situate, lying and being at Gaga Road, Oke-Aro, Akure covered by a certificate of statutory right of occupancy registered as No. 56 at page 56 in volume 309 at the deeds registry Akure by the plaintiff to the 1st defendant as same was obtained under duress.

7. An order nullifying the purported sale of plaintiffs property situate, lying and being at Gaga Road, Oke-Aro, Akure, covered by a certificate of statutory right of occupancy registered as No. 56 page 56 in volume 309 at the deeds registry, Akure by the 1st defendant of the 2nd defendant.

8. An order giving possession of the property situate, lying and being at Gaga Road, Oke-Aro, Akure the same covered by a certificate of statutory right of occupancy registered as No. 56 at page 56 in volume 309 at the deeds registry, Akure to the plaintiff which property has been unlawfully and illegally occupied by the 2nd defendant.

10. An order perpetual injunction retraining, the defendant, their agents, privies, nominees whosoever and howsoever from further committing acts of trespass or repossessing or entering the plaintiff’s property situate lying and being at Gaga Road, Oke-Aro, Akure covered by a certificate of statutory right of occupancy registered as No. 56 at page 56 in volume 309 at the deeds registry, Akure.

11. A sum of N1.5 million as damages for the false imprisonment, illegal, wrongful and unconstitutional detention of the plaintiff at the Army Barracks at the instigation of the 1st defendant see pages 5-9 of the rewards of this appeal.
The parties joined issues, filed and exchanged their respective pleadings, led evidence and exchanged their filed written addresses.

The learned trial court delivered its judgment on 26th of September, 2008 and granted all the reliefs of the respondent see pages 96-150 of the records of this appeal.
The appellants in their joint Brief of Argument dated this 5th day of March, 2012 but filed on 12th March, 2012 distilled the issues bellow for determination in this appeal.

(1) Whether the respondent’s claims against the appellant should have been granted given the evidence adduced before the Honourable Court.

(2) Whether the refusal of the amendments sought by the appellants at the trial court does not amount to a denial of fair hearing.

(3) Whether from the totality of the evidence on record both oral and documentary, a case of false imprisonment illegal, wrongful and unconstitutional detention of the respondent was made out.

On the other hand, the respondent in his brief of argument dated 22nd day of August, 2012 but filed on 6th day of September, 2012 submitted the two (2) issues below for determination.

(1) Whether from the totality of evidence before the lower court the learned trial judge was right and correct in – law to have entered judgment in favour of the plaintiff/respondent.

(2) Whether the exercise of the trial court’s discretionary power in dismissing the appellants’ application dated 13th May, 2008 for amendment was judiciously and judicially exercised.

I have taken a close look at the issues formulated by the parties in this appeal and I wish to adopt the issues raised by the appellant for the purpose of the determination of this appeal for being encompassing.

Therefore, the issues for consideration in this appeal are:

(1) Whether the respondent’s claims against the appellants should have been granted given the evidence adduced before the Honourable Court.

(2) Whether the refusal of the amendment sought by the appellants at the trial court does amount to a denial of the hearing.

(3) Whether from the totality of the evidence on record both oral and documentary, a case of false imprisonment, illegal wrongful and unconstitutional detention of the respondent was made out.

ARGUMENT

Issue I and II above were argued jointly by the appellant’s counsel with the leave of this court. In his argument, the appellant’s counsel, Emeka Ugwa Esq. submitted that the allegation of false imprisonment, illegal wrongful and unconstitutional detention and the alleged extraction of his under duress made by the plaintiff vide his writ of summons were criminal in nature page 22 and 23 lines 6 and 19 of the statement of claim contained at page 6 of the record of appeal was agreed to.
It was contended that such allegation must be proved beyond reasonable doubt but the respondent as the plaintiff at the trial lower court failed woefully to so prove. Section 138 of the Evidence Act 2011 (As amended) as well as the cases of Udosen v. State (2005) 8 NWLR (Pt. 928) 587 @ 604 Para 4 and Imam v. Sherif (2005) 4 NWLR (Pt. 914) 80 @ 98 were referred to.
It was submitted that the trial court erred in law having relied on evidence that did not meet the requirements of the law. Also that this piece of evidence was not pleaded in the statement of claim and therefore cannot be relied upon being a non – issue as held in Thompson Organization Ltd. & Ors. (1969) NML 99.
It was also argued that failure of the respondent to join the Nigerian Army and sergeant Musa who allegedly extracted his signature under duress and detained him unlawfully at the instigation of the 1st appellant as co-defendants is fatal to the respondent’s case at the lower court.
It was finally submitted that the trial court erred in law by granting the reliefs of the respondent when the said respondent did not prove his case on the standard prescribed by law.
In his own reaction, the respondent’s counsel Michael Akinfemi Onoyemi Esq. submitted that the evidence at the trial court was on the balance of probability that any reasonable court would have held same view as the trial court. Further that the evidence was credible enough to secure the holding of the trial court.
It was further submitted that the pleadings and evidence of the respondent before the trial court did not require proof beyond reasonable doubt as submitted by the appellant’s coursed but on the balance of probability. Also that the fact that the respondent said he was made to sigh exhibit A2 under duress does not mean that an allegation of crime has been made that require proof beyond reasonable doubt.
It was also argued that in establishing whether there was duress and undue influence, positive evidence must be led or strong inference that can be drawn from the surrounding circumstances relating to the facts. Also that the evidence before the trial court was not challenged or impeached by the appellant through positive evidence. The case of pan Bisbilder Ltd. v. First Bank Ltd. (2000) FWHR (Pt. 2) 177 @ 191 was referred to.
Furthermore, it was contended that what was in issue at the lower court was the “fraudulent act” of the 1st appellant and not forgery as alleged by the appellants. And fraudulent act in a tortuous act which requires proof on the balance of probability. Also that the respondent did not deny the existence of exhibit A2, but only complained that he was fraudulently compelled to sign it under duress.
On the issue of non-joinder of the Nigerian Army and sergeant Musa as parties to the suit at the trial court, the respondent’s counsel submitted that it was not fatal to the respondent’s case and, same do not amount to miscarriage of justice capable of nullifying the decision of the trial court as the issue in contention has been judicially and effectually determined. Also it was argued that the non-joining of the Nigeria Army and sergeant Musa were not raised at the trial court and that the leave of this court was never obtained in respect thereof. This court was urged to discountenance with the argument.
It was finally submitted that in as much as parties in their various pleadings and evidence agreed and item ‘that the main issue in dispute borders on money lending transaction, the learned trial judge was therefore right in law and equity to have granted the claim of the respondent. The case of A.S.E.S.A. v. Ekwenem (2009) ALL (Pt. 491) FWLR 833 @ PP 856 – 857 was referred to.

RESOLUTION OF ISSUE I & III

It is the position of the law that for a party to succeed in a civil matter, he must prove his case on balance of probability or on preponderance of the evidence he adduced. See Agala & Ors. v. Egwere & Ors. (2010) 5 S.C. M. P. 22, particularly at page 37 para H. see also the cases of Obiaziakwor v. Obiaziakwor (2007) ALL FWLR (Pt. 371), 1602 at pages 1618 paras G O G and Agienoji v. C.O.P. Edo State (2007)ALL FWLR (Pt. 367) 887 at page 906.
When the evidence in support of the plaintiff’s case is credible and convincing then no reasonable court would hold otherwise as doing otherwise would amount to a judicial somersault. See Obiaziakwor v. Obiaziakwor (2007) ALL FWLR (Pt. 371) 1602 at page 1618 paras F – G and Agienoji v. C.O.P., Edo State (2007) ALL FWLR (Pt. 367), at p. 906.
In establishing his case, the respondent as plaintiff at the trial court called PW1 – PW3 and the respondent in person testified as PW4 in support of his claim. PW1 testified that the property in issue belongs to the respondent. PW2, one Solomon Olaitan testified that the 1st appellant hired his vehicle to take the respondent to the Army Barracks with 2 (two) soldiers. In his words:

“……… The first time I knew the plaintiff was when the 1st defendant came to hire my vehicle to take the plaintiff to the Army Barracks. I took them to the army barracks. We went with 2 soldiers to take the plaintiff from his shop. The shop I at Oba Adesina Road, Akure. When I took them to the army barracks, I did not return the plaintiff to his shop. What I saw that happened to the plaintiff is that when we get to the army barracks the soldiers dragged the plaintiff from the vehicle into quarter guard. My car with which I took the plaintiff and the others to army barracks was a Peugeot car with registration No. OD II AB. The army barracks is located at Ondo Road”.

(see page 26 of the record).

Under the cross-examination, PW2 further stated that:

“….. you used soldiers to try to get your money from the plaintiff …. ALL witnessed is that plaintiff was dragged out of the car and was being pushed by the soldiers to where they were taking him. You told me to go away that you would pay me the following day. I did not bother to find out what was being done to the plaintiff by soldiers because that was my first time of seeing him I did not wait to see the outcome of what happened to the plaintiff because you told me to go away. On that day I arrived in your office at 12 noon, we did not leave until after 2 pm when the soldiers came. You sent your clerk whose name is called Joseph to call me. I was in your office from 12 noon till we were waiting for the soldiers you wanted to use. The soldiers arrived at 2.15 pm. We entered the car, I, the 1st defendant, the secretary of 1st defendant, 2 soldiers who were not in uniform and we went to collect the plaintiff. Joseph was sitting with me in front of the car, the plaintiff was placed between the 2 soldiers. I was the driver. I was instructed to drive the car to the army barracks at Ondo Road, Akure. Because I was delayed and he did not have immediate cost to give me, he said I should go away and come back for my money following day. “(sic)

(See pages 27 – 28 of the record).

The testimony of PW2 was corroborated by PW4 in his examination-in-Chief when he stated:

“I know PW2 very well. I knew him on 10th December, 1998. He came to me; he brought a Peugeot 504 car Registration No. OD 11 AS, white colour. When the 2nd PW get to my shop at 106 Oba Adesida Road, Akure. The 1st defendant came out of his car. One Mr. Joseph also came out of the car. Two soldiers came out of the car. They were not in uniform. When they entered my shop they showed me their identity cards to identify themselves as soldiers. They informed me that their boss would like to see me in the barracks at Ondo Road. I asked for my offence to ensure my being invited to the army barracks. I would be informed about my offence. When we got to the army barracks, the soldiers came out of the car because I sat at the back, as I came out they started beating me. I was requesting for my offence whilst they were dragging me on the ground to the office of their boss, one Sergeant Mohammed. The car that took me to the army barracks was driven by PW2. When I was taken before the boss “I was asked whether I know Akeju, the 1st defendant. I was asked for what transpired between me and the 1st defendant. I was asked for the amount I told them that I borrowed N30,000.00 from the 1st defendant. I told them that I borrowed the money in four installments. I told them that on 13th February, 1979, I borrowed N5000.00 from him…………..”(sic).
(See page 43 of the record).

It is my view that pleadings and evidence of the respondent before the lower court did not require proof beyond reasonable doubt but on balance of probability. The fact that the respondent said he was made to sign Exhibit A2 under duress does not mean that an allegation of crime has been made that required proof beyond reasonable doubt. In establishing whether there was duress and undue influence, positive evidence must be led or strong inference that can be drawn from the surrounding circumstances relating to the facts.
In Pan Bisbilder Ltd. v. First Bank Ltd. (2000) FWLR (Pt. 2) 177 @ 191, the Supreme Court stated:
“Reliance on the exception of undue influence must be established by positive evidence or strong inference that can be drawn from the surrounding circumstance.”
The requirement of law placed on the respondent as contained in Section 133 and 134 of Evidence Act 2011 (As amended) has been discharged and the lower court was right to hold that the respondent has discharged the burden and therefore entitled to judgment. The contention between the parties before the lower court bordered on money lending as allegation of crime was never directly in issue to warrant proof beyond reasonable doubt. See Akinkugbe v. Ewulum Holdings Nig. Ltd. (2008) ALL FWLR (Pt. 423) 1269 at p. 1286. Furthermore, the respondent never pleaded the allegation of forgery in his pleading, and the appellants’ counsel cannot at this stage formulate facts and evidence for the respondent. The inference from the facts show that the respondent was defrauded by the appellant. And fraud is a tortuous wrong. It is necessary to distinguish between fraud and forgery for the proper understanding and for the purposes of this appeal. See Aina v. Jinadu & Anor. (1992) 4 NWLR (Pt. 233) 91 @ 110.
In Black’s Law Dictionary 7th edition @ page 672, ‘fraudulent act’ is defined as:
“The act of fraudulently making a false document or altering a real one to be used as if genuine.”
From what I garnered from the records of this appeal, what was in issue at the trial court was the fraudulent act of the 1st appellant, and forgery as alleged by the appellants. The essence of pleading in any action is to place before the court material facts and ensure that opposing party is not taken by surprise and the law of pleading does not say that a person/party must plead verbatim all his fact since it is not an essay writing, provided the averments in the pleadings is sufficient. Also, the respondent is under a duty to give evidence in line with his pleading and fact including fact not expressly pleaded but related and/or connected to the fact in issue. See Jolayemi v. Olaoye (1999) 10 NWLR (Pt. 624) 600.
Furthermore, the core issue in dispute at the trial court as revealed by the parties is that the transaction in dispute is governed by Money lenders Law of Ondo State, this was also the finding of the court. This finding of the trial court in this respect was not appealed against by the appellants and be that as it may is not the subject of this appeal. Therefore, failure to appeal against the finding of the lower court simply means that the finding is admitted and undisputed and the appellants are bound by it. See the cases P. N. Udoh Trading Co. Ltd. v. Abere (2001) FWLR (Pt. 57) 900 at P.924; Sparkling Breweries Ltd. v. U.B.N. Ltd (2001) FWLR (Pt. 71), 1682 at P. 1700; Iloma v. Idakwo (2003) FWLR (Pt. 171) 1715 at P. 1736.
On joinder of parties and what makes one a party that must be joined in a suit, I wish to state that what makes one a necessary party is not because such person has relevant evidence to give and/or he has interest in the correct solution of some questions in issues, but that such a person should be bound by the result of the action and question to be settled. See Green v. Green (1987) NWLR (Pt. 61) 480.
In my opinion, the case of respondent against the appellants at the trial court is such which can be determined without joining the Nigerian Army and one Sergeant Musa as parties because both are not privy to the money lending transaction being the subject matter of the suit at the trial court. It is therefore the holding of this court that the non-joining of Nigerian Army and Sergeant Musa as parties in the suit at the trial court cannot and is not fatal to the respondent’s case and same do not amount to miscarriage of justice capable of nullifying the decision of the trial court.
Moreover, I have gone through the records of this appeal and I can see that the issue of non-joining of Nigerian Army and Sergeant Musa were never raised at the trial court. What this means is that for the appellant to raise it for the first time in this appeal, the leave of this court is required the leave of this court was never obtained; that being the case, this court has no option than to discountenance with the argument thereof. See Akpan v. Bob & Ors (2010) 10 S.C.M. 1 @ P.43; Iloma v. Idakwo (2003) FWLR (Supra) @ pages 1730 – 1731.
Also, it is a discretion within the exclusive domain of a litigant to choose who to sue provided the issue in dispute can be settled among the parties before the court and where the appellants herein is of the view that the joining of Nigerian Army and Sergeant Muse is crucial they were allowed to bring application for joinder which was not done at the trial court. See Agbekoni v. Karren (2008) ALL FWLR (Pt. 406), 1970 at PP. 1987 – 1988.
Assuming, although not the opinion of this court that joining of Nigerian Army and Sergeant Musa is necessary, the appellants having taken step by participating in the proceedings up to the judgment cannot at this stage raise the issue of non-joinder and more so, failure of the appellants to raise timeously the issue of non-joining of Nigerian Army and Sergeant Musa as parties at the lower court means a waiver on the part of the appellants which cannot be fatal and also cannot amount to miscarriage of justice. See Sapo & Anor. v. Sunmonu (2010) 6 S. C. M. at page 220 – 221.
In view of the foregoing issues I and III are hereby resolved against the appellants.

ISSUE II

Whether the refusal of the amendment sought by the appellants at the trial court does not amount to denial of fair hearing.

The appellant’s counsel submitted on this issue that amendment of processes can be made at any stage before judgment is delivered, unless such amendment will enthrone injustice or surprise or embarrassment to the other party or where the applicant is acting mala fide. The counsel referred to Bank of Baroda v. Iyalabani Company Ltd. (2002) FWLR (Pt. 124) 494 @ 526 D – F; Adewunmi v. A.G. Ekiti State (2002) FWLR (Pt. 92) 1835 @ 1862 B-D Owena Bank Plc. v. Olatunji (2002) FWLR (Pt. 124) 529 @ 600 A-C.
It was contended that in the instant appeal, the application for amendment was brought after the plaintiff alone had closed his case. That at the time, the plaintiff was at liberty to call additional evidence if and only if the amendment sought introduced new issues and there was need for him to so do. The counsel submitted that the reasons given by the court for refusing the grant the application are to say the least erroneous and that occasioned miscarriage of justice. Pages 25-26 of the records of appeal were referred to.
The appellants finally submitted that the excuse by the court that both counsel who are senior members of the bar who had handled the case from the beginning should have tidied it if those outstanding unpleaded facts, amounted to visiting the sin of the counsel on the litigant and courts should not visit the sin of the counsel on the litigant. The cases of Alsthom S.A. v. Saraki (2000) FWLR (Pt. 22), 964 @ C – E Inducon Nig. Ltd. v. Wisepart (2003) FWLR (Pt. 187) 880, F-G were referred to.
The respondent’s counsel on his own part submitted that the trial court exercised it’s discretionary power judiciously and functionally in dismissing, the application for amendment brought by the appellant for amendment after the close of the respondent’s case as the application would prevent the respondent from leading evidence in respect of the new facts, thereof and would overreach the respondent. The cases of Akaniwo J. Nsiri (2008) ALL FWLR (Pt. 410) 610 at PP. 655 – 658, Union Bank v. Astra Builders (2010) 7 S. C. M 187 @ p. 204 were referred to.
It was contended that the general proposition of law that amendment can be made at any stage of proceeding is not without an exception and the exceptions include where amendment sought will be overreaching, in bad faith, bring surprise and embarrassment. The case of Laguro v. Toku (1992) @ FWLR 278 @ 291 was referred to where Karibi – Whyte, JSC (As then was held thus)
“…… amendments are more easily granted when the grant does not necessitate the calling of additional evidence or changing the character of the case…in such a case, it is generally and correctly held that no prejudice will result from the amendment.”

It was contended that the appellant’s application for amendment was caught by the above exceptions and any court of law would not grant same as amendment is not granted to enable a party to re-open his case. Also that at the stage of the application for amendment, the respondent was not at liberty to call additional witness since he had closed his case.
This court was urged to resolve this issue in favour of the respondent.

RESOLUTION OF ISSUE II

Whether the exercise of the trial court’s discretionary power in dismissing the appellants application dated 13th MAY, 2008 for amendment judiciously and judicially exercised.

It is a trite law that amendment can be sought at any stage of the proceeding provided such amendment will not occasion injustice to the respondent, and was not brought in bad faith and neither meant to overreach the respondent. See Akaninwo v. Nsirim (2008) ALL FWLR (Pt. 410) 610 at PP. 655 – 658, Oja v. Ogboni (1976) 4 SC 69.
Trial courts are bound to refuse an application to amend where such amendment is in bad faith, will occasion injustice to the other party and overreaching in nature. This is the law as stated by the Supreme Court in Akaninwo v. Nsirim (Supra).
The appellants brought their application for amendment dated 13th May, 2008 filed on the same day (see pages 20 – 17 of the records of this appeal) after the respondent had closed his case at the trial court and DW1 (2nd appellant) had given evidence.
The said application was moved on the 14th day of May, 2008. (see pages 23-25 of the record of this appeal). The learned trial judge was right to have exercised its discretion by dismissing the application. See Akaninwo v. Nsirim (Supra), See also Union Bank v. Astra Builders (2010) 7 S. C. M. 187 at P. 204. Diko v. Ibadan 2 NWLR (Pt. 486) 249 B.
The proposition of law that amendment can be made at any stage of proceeding is not without an exception, the situations include where the amendment sought will be overreaching, in bad faith, siring surprise and embarrassment. In Laguro v. Toku (1992) 2 NWLR 278 @ 291, the Supreme Court per Karibi-Whyte, JSC (As he then was) held:
“….. amendments are more easily granted when the grant does not necessitate the calling of additional evidence or changing the character of the case……. in such a case, it is generally and correctly held that no prejudice will result from the amendment.”
Also, in Imonikhe v. A.G. Bendel State (1992) 7 SCNJ 197 @ 207, per Nnaemeka Age, JSC stated-:
“Although, by the rules, an amendment to the pleading can be made at any stage of the proceedings, different considerations apply depending on whether the amendment is being sought before or after the close of the evidence, as may be called admissible, as evidence on an issue which was not pleaded or a claim not on the record is strictly inadmissible. But once the calling of evidence has been concluded, any amendment of the pleading or claim can be justified or allowed only on the premise that evidence in support of it is already on record, so that it is necessary and in the interest of justice to allow the amendment in order to make the pleadings or the claim accord with evidence already on record. The rationale of it is that such amendment should be allowed to enable the court to use the evidence already on record to settle the real issue in controversy between the parties.”
There is no doubt that the appellants’ application for amendment was caught by the above exceptions, any court of law would not grant same as amendment is not granted to enable a party to re-open his case.
Further down, at the stage of the application for amendment, the respondent was not at liberty to call additional witness since he had closed his case. See Mrs. Adetutu v. Mrs. Aderohunmu & Ors. (1984) 6 SC 92. It is therefore the position of this court from the foregoing that this appeal lacks merit and ought to be dismissed. However, reliefs No. 3 and No. 10 sought and granted by the lower court are hereby reduced to interest of 10% per month charged by the 1st defendant /appellant on the sum of N30,000.00 borrowed by the plaintiff from the 1st defendant/appellant in 1998 and the sum of N500,000.00 as damages for false imprisonment, illegal, wrongful and unconstitutional detention of the plaintiff at the Army Barracks at the instigation of the 1st appellant/defendant respectively.
No orders as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Sotonye Denton-West JCA.
I agree that the appeal lacks merits and it is accordingly dismissed.

CORDELIA IFEOMA JOMBO-OFO, J.C.A: I read in draft the lead judgment just delivered by my learned brother, DENTON-WEST, JCA and I agree with him that this appeal lacks merit and should fail. He has comprehensively dealt with the issues raised therein. I therefore adopt the reasoning and conclusions reached in the judgment as mine.
I make no order as to costs.

Appearances

Emeka Ugwu Esq.For Appellant

AND

Michael Akinferemi Owoyemi Esq.For Respondent