“The Court accepts this argument as correct. In Loutfi etc. no formal amendment was submitted until after both Counsel had addressed the court. Sellers J. said (at p. 824 of the report)- “I should allow that amendment because it is simply setting out in the pleadings that which has emerged in the course of the case as an issue between the parties.” In the present case either party called his surveyor at the start of the trial, and both parties agreed on what was in issue between them by reference to their plans. In effect they proceeded with the contest as if the plaintiffs’ pleading had been what it became after the amendment; all that the amendment did was to write down what the defendant had known all along to be the plaintiffs’ case. The amendment did not take him by surprise, and he has no just cause for complaint. There is a suggestion for the defendant that he might have wished to call more evidence from other families. As this suggestion was made in reply, the Court has not the benefit of argument from the other side. After leave to amend was given, defendant’s Counsel in the court below put in some documents as part of his evidence. Had he wished to call more witnesses, he could have asked for leave. He did not ask for leave to amend his defence; in it he claimed more land than was conceded to him, and there is no doubt that the oral evidence he called was with a view to show that he was entitled to the unconceded part he claimed; and what that part was he knew from the start of the trial. The suggestion is theoretical only.”

Per VAHE ROBERT BAIRAMIAN, JSC in OGUNTIMEYIN V. GUBERE (1964) LCER-306(SC) (Pp 7 – 9, Paras F – A)