Onyeama Ezenwa V. Samuel Ikegbunam Mazeli & Ors (1955)

LawGlobal Hub Judgment Report – West African Court of Appeal

Trespass to land—right of an executor in possession to bring action—joinder of plaintiffs after close of case but before judgment—Order IV, Rule 5 (1) Supreme Court (Civil Procedure) Rules—meaning of “hearing”—finding in previous suit as to marriage—resjudicata.

Facts

This was a claim for trespass and for an injunction brought originally by the first respondent in the Native Court. The case was transferred to the Supreme Court, where the second respondent was added as a plaintiff. After the close of the plaintiffs’ and defendant’s cases and the addresses of Counsel, the trial Judge adjourned the case sine die, and before he delivered judgment, re-opened the hearing and ordered that the third, fourth, fifth and sixth respondents be added aS plaintiffs.

The plaintiffs’ case is that the compound in dispute was owned by Nneka Enwezor, who died testate, having appointed the first plaintiff as her executor, and the third, fourth, fifth and sixth plaintiffs were devisees of a portion of the land in dispute. The second plaintiff was joined as having purchased a portion of the land in dispute from Nneka Enwezor.

The defendant/appellant claimed the land through his father, and he alleged that Nneka Enwezor was one of his father’s wives. This was denied by the plaintiffs. The Court accepted the plaintiffs’ case and gave judgment for the plaintiffs.

On appeal Counsel for the appellant submitted/ inter alia,
(1) that the joinder of the third, fourth, fifth and sixth plaintiffs was wrong, as the power ofjoinder had to be exercised at or before the hearing of a suit, and he submitted that the hearing was concluded when the parties had closed their case and the trial adjourned only for judgment.

(2) that the first plaintiff had no legal title to the property in dispute.
(3) that the trial was unsatisfactory as it was not decided whether Nneka Enwezor was married to the appellant’s father.

Held

1. The hearing of a case continues up to the delivery of the judgment, and the trial Judge may properly re-open the case and order a further joinder of the parties at any time before delivering his final decision.

2. The first plaintiff was properly joined as he was in possession of part of the premises in dispute and collected certain of the rentals from the place. His position as ad executor was not dealt with.

3. The issue as to the marriage between Nneka Enwezor and the appellant’s father had been previously determined in another suit between the present appellant and his brother and Madam Nneka Enwezor, and the trial Judge correctly held that this issue had been determined and was resjudicata between the parties in this action.

Appeal dismissed.