DETINUE

CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• Definition of detinue
• When to sue for detinue
• Differences between conversion and detinue

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

In this unit, we consider the tort of detinue.

OBJECTIVES

By the end of this unit you should be able to:

• define detinue; and
• explain the differences between conversion and

MAIN CONTENT

Definition of Detinue

The tort of detinue is the wrongful detention of the chattel of another person, the immediate possession of which the person entitled. Detinue is a claim for the specific return, delivery, or surrender of a chattel to the plaintiff who is entitled to it. Detinue is the wrongful detention or retention of a chattel whereby the person entitled to it is denied the possession or use of it. As a general rule, to successfully sue in detinue, a plaintiff must have possession before the detention, or have right to immediate possession of the chattel.

Essentially, the tort of detinue is:

1. The wrongful detention of the chattel of another person
2. The immediate possession of which the person is entitled.

An action in detinue is a claim for the specific return of a chattel wrongfully retained, or for payment of its current market value and any consequential damages. Anybody who wrong fully takes, detains, or retains a chattel, and after a proper demand for it, refuses, or fails to return it to the claimant without lawful excuse may be sued in detinue to recover it or its value. In the United Kingdom, the Torts (Interference with Goods) Act 1977 has abolished the tort of detinue as a separate tort, and merged it with the tort of conversion where it is now known as conversion by detinue or detention.

In Nigeria, it still exists as a separate tort. Examples of detinue, that is, detention or retention of goods are many and include the following:

1. A lends his chairs and tables to B for a one day party, and B neglects, refuses or fails to return the furniture at the end of the day as agreed or after the expiration of a reasonable period of time. .
2. C gives his radio set to D and pays him to repair it, and D fails or refuses to release or return it after a demand has been made on him for its return. In each of these circumstances, there is a right of action to sue for detinue of the chattel.

When to Sue for Detinue

A plaintiff can only maintain action for the tort of detinue after satisfying two conditions which are:

1. The plaintiff must have title that is ownership or right to immediate possession of the chattel.
2. The defendant who is in actual possession of the chattel must have failed, and or refused to deliver the chattel to the plaintiff after the plaintiff has made a proper demand for the return of the chattel, without lawful excuse. Thus, there must have been a demand by the plaintiff for the return of the chattel and a refusal or a failure to return them. This making of a demand by the plaintiff on the defendant is a condition precedent which the plaintiff must establish to succeed in his claim for detinue.

In Kosile v Folarin (1989) 3 NWLR pt 107, p. 1 SC,

The defendant motor dealer seized and detained the motor vehicle he had sold to the plaintiff on credit terms, upon delay by the plaintiff to fully pay up. The plaintiff buyer sued for detinue claiming damages. The Supreme Court held: inter alia that the seizure and detention of the vehicle by the defendant was wrong. The plaintiff was entitled to the return of the vehicle or its value and for loss of the use of the vehicle until the date of judgment at the rate of N20 per day.

In the above case, the Supreme Court emphasised the requirement that in an action for detinue, there must have been a demand by the plaintiff on the defendant to return the chattel, and if the defendant persists in keeping the chattel, he is liable for detinue. See also lhenacho v Uzochukwu (1997) 2 NWLR pt 487, p. 257 SC.

In West Mrica Examinations Council v Koroye (1977) 2 SC 45; 11 NSCC 61,

The plaintiff sat for an examination conducted by the defendant council. The defendant neglected and or refused to release his certificate. The plaintiff successfully claimed in detinue for his certificate and was award damages in lieu of the release of the certificate by the Supreme Court.

In Davies v Lagos City Council (supra at 155),

The defendant city council wrongfully seized and detained the plaintiff’s taxi cab. The plaintiff sued claiming damages. The Lagos High Court held that: The plaintiff was entitled to a return of the vehicle and loss of earnings on the vehicle as a result of the unlawful detention. In this case ADEFARASIN J as he then was stated that a plaintiff is entitled to loss of earnings on his chattel which he uses for work or business, thus:

"This is not a case in which the plaintiff is entitled to the value of the vehicle. He is, however, entitled to the losses caused to him as a result of the unlawful detention. He

is entitled to the loss of earning on the vehicle.”

In Steyr Nig. Ltd v Gadzama (1995) 7 NWLR pt 407. p. 305 CA,

At the end of their services, the plaintiff appellant company sued the defendant respondents who were former employees of the appellant for detaining official cars and household items which were in their use as top management staff of the company. The Court of Appeal held: that the respondents were to pay reasonable prices for the items in lieu of returning the chattels.

Stitch v A.G. Federation (1986) 5 NWLR pt 47, p. 1007 SC.

The plaintiff appellant imported a car from overseas. It was detained by the Board of Customs and Excise at the sea port. The Customs then sold it to the fourth defendant who started cannibalizing and selling its parts. The plaintiff appellant sued the defendants for return of the car. On appeal the Supreme Court held: that the appellant was entitled to possession of the car, but as it was virtually a wreck due to cannibalism, the court will order that the trial court should take evidence as to what a fairly used car similar to that of the appellant's car will cost and award the purchase price as damages to the appellant in lieu of the return of the car. See also Ordia v Piedmont Nig. Ltd (1995) 2 NWLR pt 379. p. 516 SC.

Ajikawo v Ansaldo Nig. Ltd (1991) 2 NWLR pt 173. p. 359 CA.

The plaintiff appellant bought a generator from its owner who asked him to collect it from the defendant respondent company who had custody of it. The respondent indicated interest to buy it and refused to release it to the appellant buyer. The appellant sued for the unlawful detention of the generator. The Court of Appeal held: that the appellant buyer was entitled to the generator, or its value and also to damages for the period of detinue till it was delivered up, or it value paid, for detinue is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods, and continues until delivery up of the goods or judgment in the suit, or payment of its value. See also Kalu v Mbuko (1988) 3 NLWR Pt BO. p. 86 CA.

Ogiugo & Sons Ltd v C.O.P (1991) 3 NWLRpt177, p.46 CA.

The lorry of the plaintiff appellant transporter was carrying a customer's goods, when the police intercepted and seized the vehicle on suspicion that the goods were contraband. Representations for its release failed to yield result. The appellant claimed for detinue of the vehicle. The Court of Appeal held: that the appellant was entitled to the immediate release of the vehicle and damages for its unlawful detention. The plaintiff must have title or right to immediate possession to be able to sue successfully for detinue.

Shuwa v Chad Basin Development Authority (1991) 7 NWLR pt 205, p. 550 CA.

A third party sold a bulldozer which they had no authority to sell to the plaintiff appellant. The bulldozer was in the custody of the defendant respondent authority who had a lien on it. The respondent authority refused to release it to the appellant unless the third party seller paid the money due on it to the respondent authority. The third party who was the owner of the bulldozer had forfeited it to the authority under the terms of an unfulfilled contract. The appellant buyer sued for the detention of the bulldozer. The Court of Appeal held: that the action of the plaintiff appellant must fail. The third party had no authority to sell to the plaintiff as they no longer had title. The plaintiff in a claim for detinue must establish that he is the owner or that he has right to immediate possession of the thing the recovery of which he is seeking. See also Sodimu v NPA (1975) All NLR 151.

As a general rule, where there is a subsisting lien on a property, a claim for detinue will not succeed as was held in Shuwa v Chad Basin Development Authority (supra).

In Otubu v Omotayo (1995) 6 NWLR pt 400, p. 247 CA,

The plaintiff respondent kept his title deeds with a third party who subsequently deposited the deeds with the defendant appellant as collateral to secure a loan. The plaintiff respondent sued the defendant appellant for return of the title deeds. The Court of Appeal held: that an action cannot succeed where there is a subsisting lien on the chattel. Where there has been an equitable mortgage by deposit of title deeds as collateral to secure a loan, by a third party who does not own the deeds, but had custody of the deeds, an action for detinue cannot be maintained for return of the deeds or chattel, prior to payment of the amount due on it, or redemption of any outstanding obligation. See also Udechukwu v Okwuka (1956) SCNLR 189 at 191.

The Differences between Conversion and Detinue

Detinue covers the same ground as the tort of conversion by detention. However, some differences are to be noted which include the following:

1. The refusal to surrender or return a chattel on demand is the essence of detinue, or detention. There must have been a demand for return of the chattel.
2. Detinue is the proper remedy where the plaintiff wants a return of the specific goods in question, and not merely an assessed market value. However, where specific return of the chattel or a replacement will not be possible, an award of the current market value of the chattel is usually made to the plaintiff.

Before the Common Law Procedure Act 1854, was enacted a defendant had a choice to either restore the actual chattel or pay the market value. However, since the enactment of the Act, a court has discretion to order specific restitution, or award the market value of the chattel to the plaintiff or it may award damages alone if the goods can be replaced easily.

The Defences for Detinue

In an action for detinue, a defendant may plead that:

1. He has mere possession of the goods
2. That the plaintiff has insufficient title as compared to himself
3. The defendant may plead jus tertii, that is, a third party person has a better title, provided the defendant is the agent, or has the authority of the third party, or is claiming under the third party.

Jus tertii, is the better title of a third party. Jus tertii is a defence, that is, based on ownership by a third party, and it is not pleaded, except the defendant is defending under the right of such third party who has ownership, or paramount title, that will enable him to establish a better title, and the right to possession, than the plaintiff. Otherwise, as CLEASBY BJ said in Fowler v Hollins (1872) LR 7 QB 616 at 639:

"Persons deal with the property in chattels, or exercise acts of ownership over them at their peril”.

4. Innocent delivery
5. Subsisting bailment
6. Subsisting lien on the chattel. See Otubu v Omotayo (supra)
7. Temporary retention of the chattel to enable steps to be taken to check the title of the plaintiff
8. Inevitable accident, see National Coal Board v Evans (1951) 2 KB
9. Reasonable defence of a person or property, such as when one beats or injures a dog that was attacking him or another person.
10. Enforcement of a court order or other legal process, such as levying of execution of property under a writ of fifa, or the police taking away goods they believe to have been stolen for the purpose of use as exhibit in evidence before court,

The Remedies for Detinue

When a person's chattel is detained by another person, the person who is denied possession or use of such chattel, has several remedies open to him which include:

1. Claim for return of the specific chattel
2. Claim for replacement of the chattel
3. Claim for the current market value of the chattel
4. Recapture or self help to recover the goods.
5. Replevin, that is release on bond pending determination of ownership.
6. Damages

We shall briefly examine these remedies.

1. Claim for Return of the Chattel:

This is a claim for the return of the specific chattel, especially, if the chattel has not changed its character, content, and it has not been damaged nor destroyed during its detention.

2. Replacement of the Chattel:

Where possible or appropriate, a defendant may be ordered to replacement the chattel by supplying an identical or similar chattel. This is possible for instance in the case of manufacturers of products, who can easily replace the goods by supplying an identical or similar product.

3. Claim for the Market Value of Chattel:

This is a claim for the current market value of the chattel as may be assessed. The measure of damage in detinue is usually the market value of the goods as proved at the time of judgment. The onus is on the plaintiff to prove the market value. Therefore, where there is default of restitution a plaintiff may claim for payment of the value of the chattel. This option appears to be the best form of action, where the chattel has otherwise been removed from jurisdiction, or hidden, damaged, destroyed or otherwise not found. In such circumstances there is no alternative than to claim for the market value of the chattel as assessed, plus any specific and general damages for its detention.

4. Recapture or Self help:

A person who is entitled to possession of goods of which he has been wrongfully deprived may resort to self-help and retake the goods from the custody of the person detaining it, using only reasonable force after he has made a demand for their return. However, he may not treapass through the land of an innocent party to retake the goods. He may only go on such land with permission. However, recapture as a remedy is usually frowned upon by court for the breach of peace and other offences it may occasion. This is because self help is an instance of taking the laws into one's hand. See Agbai v Okogbue (1991) 7 NWLR pt 204, p. 391 SC. Therefore, a person may not resort to the option of recapture or self help except it is safe, expected, and reasonable or if it will not be resisted by the defendant and or persons acting for him.

5. Replevin or Release on Bond:

This is a return of the goods on security, pending the determination of the ownership of the chattel. When a third party's goods have been wrongfully taken in the course of levying execution or distress of the movable property of another person or judgment debtor, such third party claiming ownership may recover them by means of an interpleader summons determining their ownership. The registrar will then issue a warrant for the restoration of the goods, to such third party or claimant on bond. Therefore, Replevin is the re-delivery to an owner of goods which were wrongfully seized, the action for such re-delivery, and for any specific and general damages suffered by him as the result of the detention.

6. Damages:

When a defendant has been found liable in detinue, he cannot deprive the plaintiff of his right to damages for detention of the chattel, simply because he has not been using it, nor earning anything .from its use. Also, if the wrongdoer has been making use of the goods for his own purpose, then he must pay a reasonable hire for chattel to the plaintiff. The reasonable hire usually includes the wear and tear of the goods. Therefore, as the courts have often affirmed the remedies available for the tort of detinue are an order for specific return of the chattel, or in default, an order for payment of the value and also damages that were suffered due to loss of use by the defendant up to the date of judgment or re-delivery of the chattel to the plaintiff. Also general damages may be awarded as may be assessed by the court. General damages are usually presumed in this action, especially for the loss of the use of the chattel. As in claims in other areas of law, general damages may be awarded at least to cover part of the cost of the legal action.

CONCLUSION

In this unit we learnt that Detinue is the keeping of another persons goods after there has been an unqualified and unjustifiable refusal to deliver them following a demand by or  on behalf of the true owner. If there was no demand, there can’t be detinue. If there was demand which was refused with some justification or qualification, then an action in detinue cannot be maintained. The person who brings an action in detinue must be able to show in court that he has the right of possession and property in the goods detained.

SUMMARY

In this unit we discussed

1. the definition of Detinue
2. when action for Detinue is ripe
3. the differences between Detinue and Conversion.

TUTOR MARKED ASSIGNMENT

Discuss the remedies for detinue.

REFERENCES

1. Bodunde Bankole Tort: Law of Wrongful Conduct: Lipservice Punishment (1998),
2. Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).
3. John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London. Sweet &
4. Street: The Law of Torts Sweet & Maxwell (1977), London
5. KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.

: The Criminal Procedure of the Northern States of Nigeria.