LEGAL PRINCIPLE: CIVIL PROCEDURE — Pleadings — Joinder of Claims — Claim for Trespass and Claim for Recovery of Possession Cannot Be Joined in Same Action
PRINCIPLE STATEMENT
A claim for trespass is based on possession, while a claim for recovery of possession is based on the plaintiff being out of possession. Both claims are contradictory and inconsistent; they cannot be joined in the same action.
RATIO DECIDENDI (SOURCE)
Per Musdapher, JSC, in Ezekwesili & Ors v. Agbapuonwu & Ors (2003) NLC-1081998(SC) at pp. 14–15; Paras D–A.
"A claim in trespass to land is rooted and or based on exclusive possession or right to possession, thus trespass is always against the person not in possession. A plaintiff cannot therefore maintain an action both for trespass to a particular piece of land and recovery of possession of the same land as both claims are contradictory, inconsistent and mutually divergent, one being based on the fact of the plaintiffs' possession and the other on the fact that the plaintiff is out of possession and then claiming recovery of possession."
EXPLANATION / SCOPE
Trespass and recovery of possession claims are mutually inconsistent. The principle applies to civil procedure. A plaintiff cannot claim both to be in possession and out of possession. The rule prevents contradictory claims. The plaintiff must elect between the two. The principle is well-established.