<p>de Comarmond, Ag. C.J. This is an appeal from a decision given by Hurley, J. at Onitsha, in the Onitsha Judicial Division of the Supreme Court. The suit was begun in the Native Court of Onitsha and was subsequently transferred to the Supreme Court.</p><p>At the outset, Samuel Ikegbunam Mazeli was the sole plaintiff. After the proceedings had reached the Supreme Court, Mr Ernest Egbuna successfully applied to be joined as plaintiff.</p><p>The defendant is now the appellant. The claim was for £50 damages in respect of trespass and for an injunction against further trespass. The subject matter is a piece of land or compound at Onitsha on which stand several buildings.</p><p>After the close of the case for the defence and after hearing the submissions of counsel, the learned Judge adjourned the case sine die. Later on he gave a ruling ordering that four other persons be joined as plaintiffs. The reasons for this order were set out in the ruling given in the presence of counsel appearing for the first plaintiff, the second plaintiff and the defendant. I am of opinion that the reasons given by the learned Judge were cogent and that it was most desirable that these four persons be joined in order to forestall further unnecessary litigation over a dispute which had already been before the courts several times since 1929. Whether or not it was too late to order the joinder is a point that has been raised on this appeal by Mr Taylor, who appeared for the appellant.</p><p>In order to do justice to Mr Taylor's submissions it is necessary to explain briefly that the plaintiffs’, case is that the woman Nneka Enwezor, who died in 1948, had acquired from the Mgbelekeke family the compound which is in dispute, and was the owner thereof at the time of her death. She left a will, and the four plaintiffs joined by the Court at the end of the trial are devisees of portions of the said compound. The first plaintiff began the suit in his capacity of executor and trustee of the will and the second plaintiff applied to be joined as plaintiff because part of the compound had been conveyed to him by Nneka Enwezor.</p><p>That defendant is one of the sons of the man Ezenwa. According to the defendant, it was his father who acquired the compound in dispute from the Mgbelekeke family, and the woman Nneka was one of his wives.</p><p>Ezenwa died in 1925 and from 1929 onwards, his sons have been endeavouring to establish their claim to the compound.</p><p>The gist of the plaintiffs' case is that Nneka Enwezor was a rich woman who traded in ivory and owned houses, whereas Ezenwa senior was a humble village blacksmith who was befriended by Nneka and who ultimately became her lover. According to the plaintiffs, Ezenwa came to live in the compound after Nneka had acquired it and had erected buildings thereon. Nneka is represented by the plaintiffs as a woman who had had several paramours but who never married. It would appear that Nneka gave a house to Ezenwa. This house is separated from the rest of the compound by a wall and does not form part of the area in dispute.</p><p>From the above, it is easy to realise that the joinder of the four plaintiffs who are devisees of portions of the compound was eminently desirable in order to have before the court all the parties who derive interest through the late Nneka Enwezor.</p><p>Mr Taylor submitted that the learned trial Judge erred in law in giving judgment for the first plaintiff because he had no legal title to the property in dispute. Mr Taylor also submitted that the learned Judge erred in law by joining the second, third, fourth, fifth and sixth plaintiffs.</p><p>As regards the first plaintiff, although he sued in his own name, he made it clear in his statement of claim that he was acting as executor and trustee of Nneka's will. The trial Judge carefully dealt with the first plaintiff's position and came to the conclusion that the only interest he had in the matter was that he was still in possession and was collecting rents from certain tenants. The conclusion reached by the learned Judge was that such interest enabled the first plaintiff to bring proceedings in trespass and to apply for an injunction. It is of interest to mention that when suit 15/47 between the present defendant-appellant as; plaintiff and Nneka Enwezor went on appeal to the West African Court of Appeal, the present defendant-appellant moved tile Court to substitute the present first plaintiff in place of Nneka who had died. The present first plaintiff was made respondent in his capacity as executor of Nneka's will.</p><p>The trial Judge had unchallenged evidence that the first plaintiff was in possession of part of the premises in dispute, no doubt with the consent and approval of the devisees. It is also clear that he collected rents from certain tenants. It may be, and it is indeed probable, that he thought that he was vested with the land until he had carried out the wishes of the testatrix. I do not propose to deal with the position and rights of an executor because I consider that the learned trial Judge had sufficient justification for holding that the first plaintiff could properly act as plaintiff in this case in which he claimed damages for trespass and an injunction. </p><p>As regards the second plaintiff there can be no doubt that he had acquired in 1946 from the woman Nneka a vacant area in the compound.”</p><p>He therefore had a definite interest and was properly joined as co-plaintiff before the evidence was heard.</p><p>It remains to deal with Mr Taylor's last submission on this aspect of the case, namely that the trial Judge erred in joining the third, fourth, fifth and sixth plaintiffs after both sides had closed their case and addressed the Court. Mr Taylor contrasted the wording of Order 16 rule ,11 ,of the Rules of the Supreme Court in England and of Order IV rule 5 (1) of the Supreme Court (Civil Procedure) Rules of Nigeria. His point was that in England the Court may at any stage of the proceedings order that the names of parties who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the cause, he added. Where as in Nigeria, Rule 5 (1) of Order IV lays down that the Court may exercise a similar power “at or before the hearing of a suit”. Mr Taylor's submission was that the “hearing” is concluded when the parties have closed their case and the trial has been adjourned for judgment.</p><p>If Mr Taylor is right, it would mean that although the Court may, under Order XXXIII, order proceedings to be amended at any stage of the proceedings for the purpose, inter alia, of determining the real questions in controversy between the parties, yet, a joinder of new parties, with a view to adjudicate upon and settle all questions involved in the cause, cannot be made after both parties have closed their case.</p><p>I see no reason for restricting the meaning of the term “hearing” as suggested by Mr Taylor. I consider that a trial Judge may, where necessary, re-open the hearing before delivering his final decision. This is just what the learned trial Judge did in the present case. The order of joinder was made in the course of the re-opened hearing and I consider that it was properly made. Mr Taylor's submission that there was an improper joinder must, in my opinion, fail.</p><p>Another ground argued by Mr Taylor was that the trial was unsatisfactory because the trial Judge did not decide whether the late Nneka was married to defendant-appellant's father.</p><p>The learned Judge did not investigate that issue because he was of opinion that it had been decided in the Supreme Court at Onitsha (suit 15/1947) between the present defendant-appellant in behalf of himself and his brother, and Madam Nneka Enwezor. In that suit the plaintiff claimed an injunction to restrain the defendant from alienating or dealing with any interest in the land without plaintiff's consent. The land was the same as in the present suit. Suit 15/1947 was dismissed on the ground that the then plaintiff had not produced a shred of evidence to prove ownership in the land occupied by the defendant as would entitle him to the injunction he had sought.</p><p>Mr Taylor has strongly urged that the question whether Nneka was married to Ezenwa was not an issue in suit 15/1947 and that, at any rate, the determination of such an issue was not necessary for the decision.</p><p>I consider that the marriage issue was clearly raised in the pleadings in suit 15/1947. In the course of the trial, the allegation made by the then plaintiff to the effect that Nneka was his father's wife under native law and custom was fully investigated. Nneka denied the allegations in her statement of defence and in her evidence.</p><p>It is beyond any doubt that the learned trial Judge did find in suit 15/1947 that the alleged marriage had not been proved. Had he come to the opposite conclusion, he would have had to consider the rights of the plaintiff and of his brothers, as successors of their father, in land owned by their father's wife during marriage. Such rights would of course, have had to be ascertained under native law and custom. The question of marriage was therefore not merely collateral or incidental.</p><p>I might add that the suit 15/47 went on appeal. The appeal was dismissed (W.A.C.A. 2984) and the West African Court of Appeal expressed the view that what the trial Judge meant was that he did not accept the evidence put forward by the plaintiff and therefore found that in the plaintiff had not proved such interest as would entitle him to the injunction sought. It is abundantly clear that in the 1947 suit (see Exhibit J) a most determined attempt was made to establish Nneka's alleged marriage.</p><p>I am of opinion that the issue whether Nneka had been married to Ezenwa senior was an important one in suit 15/1947 and that the learned trial Judge in the present Case rightly held that issue had been determined and was res judicata between the plaintiffs-respondents and the defendant-appellant. This ground of appeal therefore fails.</p><p>I would dismiss this appeal with costs.</p><p>Foster Sutton, P. I concur. Coussey,J. A. I concur.</p><p>Appeal dismissed.</p>