TRESPASS TO CHATTELS

 CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• Definition of chattel
• Trespass to chattel in Nigeria
• Differences between Trespass to Chattel, Conversion and Detinue

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

In the law of tort, trespass to property is of two kinds. These are:

1. Trespass to personal property, better known as trespass to chattel, or trespass to goods; and
2. Trespass to land.

In this unit, we shall examine trespass to chattel.

OBJECTIVES

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

• Define chattel;
• Outline the differences between trespass to chattel, conversion and detinue;
• Explain the elements of trespass to chattel;
• List the persons who may sue for trespass to chattel; and
• Enumerate the remedies for trespass to chattel.

MAIN CONTENT

Definition of A Chattel

A chattel is any property other than land and immovable property. A chattel is any moveable property. The word "chattel" means any article, goods, or personal property, other than land and immoveable property. Examples of chattel or goods are innumerable.

A chattel is any moveable thing which is capable of being owned, possessed, or controlled other than a human being, land and immoveable property. Examples of chattel include cars, furniture, animal, vessel, aircraft, sea craft, and anything whatsoever which is moveable and capable of being owned. Indeed, the list of chattels cannot be exhausted.

The Purpose of the Tort of Trespass to Chattel

The tort of trespass to chattels protects all the chattel, goods, or personal properties of a person who has title or possession by prohibiting all interference without legal justification. The tort of trespass to chattel protects the rights of ownership or possession of a chattel from all wrongful interferences. Thus, the tort of trespass to chattel protects the chattels, goods, and all personal properties of a person who has title, possession, or right to immediate possession against meddling, damage, destruction, diminution, conversion, detinue, or any interference whatsoever, by any other person without lawful justification.

Trespass to Chattel Is Actionable Per Se

The three forms of trespass to chattel are each actionable per se upon commission or occurrence without the plaintiff having to prove damage. Explaining the law that trespass to chattel is actionable per se without prove of damage Adefarasin J., as he then was, in Davies v Lagos City Council (1973) 10 CCHCJ 151 at 154, held that:

“The plaintiff is entitled to succeed... in trespass... there may be a trespass without the infliction of any material damage by a mere taking or transportation.

In my view, the seizure of the plaintiff’s vehicle without just cause... is a wrongful act, on account of which all the

defendants taking part in it are jointly and severally liable.”

Although, trespass to chattel is actionable per se, however it is not a strict liability tort. Furthermore, where a specific damages has been done to a chattel, a plaintiff is entitled to prove it and recover damage for it as the case may be.

Trespass To Chattel in Nigeria

In Nigeria, the tort of trespass to chattel is made up of three types of torts. These are:

1. Trespass to chattels per se, without a conversion or a detinue of the chattel in question;
2. Conversion; and
3. Detinue

We shall examine conversion and detinue in the following units.

Trespass to chattel is any direct and unlawful interference with a chattel in the possession of another person. It is the intentional or negligent interference with the possession of the chattel of another person. In other words, trespass to chattel is any direct interference with a personal property in the possession of another person without lawful justification. The interference must be direct and wrongful. Thus, the mere touching of a chattel without causing any harm to it may in appropriate circumstances, be actionable and entitle the plaintiff to get nominal damages.

Trespass to chattel is designed to protect the following interests in personal property;

1. Right of retaining one's chattel;
2. Protection of the physical condition of the chattel; and
3. Protection of the chattel against unlawful interference or

The tort of trespass to chattel is designed to protect possession, that is, the right of immediate possession of a chattel, as distinct from ownership. It protects the right of a person to the control, possession, retention or custody of a chattel against interference by another person without lawful justification. In other words it prohibits a person from any unlawful interference with a chattel that is under the control, possession or custody of another person. The strongest way to regain ownership of goods such as when one's property is stolen is perhaps through criminal law. To maintain an action for trespass, the plaintiff must show that he had possession at the time of the trespass or is entitled to immediate possession of the chattel. Thus, a borrower, hirer, or a bailee of goods, possesses the goods lent, hired or bailed and therefore he may maintain an action against any person who wrongfully interferes with the goods. Similarly, a person who has wrongfully acquired possession may also maintain action against all persons except the owner or agent of the owner of the chattel.

Essentially, trespass to chattel is:

1. Any wrong against a chattel, goods or personalty
2. In the possession or control of another person.

In this tort, injury or wrong is done to the chattel while it is in the possession of the person claiming damages for the injury. The chattel is usually not taken from his possession as we have in conversion or detinue.

In Erivo v Obi (1993) 9 NWLR pt 316, p. 60 CA, the defendant respondent closed the door of the plaintiff appellant's car and the side windscreen got broken. The appellant sued inter alia for damage to the windscreen and the loss he incurred in hiring another car to attend to his business. The defendant respondent alternatively pleaded inevitable accident. On appeal, the Court of Appeal held that the defendant respondent was not liable. He did not use excessive force but only normal force in closing the door of the car. He did not break the windscreen intentionally or negligently. It was an inevitable accident which the exercise of reasonable care and the normal force used by the respondent could not avert.

In this case, the Court of Appeal restated the position of the law that, trespass to chattel is actionable per se, that is, without proof of actual damage. Any unauthorized touching or moving of a chattel is actionable at the suit of the possessor of a chattel, even though no harm has been done to the chattel. Therefore, for trespass to chattel to be actionable, it must have been done by the wrongdoer:

1. Intentionally; or
2. Negligently.

Thus, in the wider context, the tort of trespass to chattel is closely related to any tort or law which has to do with the protection of interest in personal property, such as:

1. Negligence;
2. Malicious damage such as arson; and
3. Other damage to property or interest in property.

Examples of Trespass to Chattel

Trespass to chattel may be committed in many different ways. However, the trespass must be intentional or negligent. Trespass may be committed by mere removal or any damage and it can be committed when there is no intention to deprive the owner, possessor or custodian permanently of the chattel. Examples of trespass to chattel include:

1. Taking a chattel away.
2. Throwing another person's property away, such as in annoyance.
3. Mere moving of the goods from one place to another, that is, mere asportation. See Kirk v Gregory (1878) 1 Ex D 55.
4. Scratching or making marks on the body of the chattel, or writing with finger in the dust on the body of a motor vehicle.
5. Killing another person's animal, feeding poison to it or beating it. See Shieldrick v Abery (1793) 170 ER 278; Cresswell v girl (1948) 1 KB 241; and Uwabia v Atu (1975) 5 ECSLR 139.
6. Destruction, or any act of harm or damage
7. Touching, that is, mere touching, for instance, touching a precious work of art which could be damaged by mere touch
8. Use, that is, mere using without permission
9. Driving another person's car without permission.
10. Filling another person's bottle with anything. See Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 214-215.
11. Throwing something at the chattel
12. Damaging or causing any harm to a chattel, by any bodily or indirect contact, such as, running one's car into another person's car.

Differences between Trespass to Chattel, Conversion and Detinue

In the tort of trespass to goods, there is no taking away, stealing, conversion, detention or detinue of the goods from the owner; or person entitled to possession. This is the main difference between it and the torts of conversion, and detinue. However, in the tort of trespass to chattel there must be some act of interference, meddling, harm, injury, damage or destruction of the goods, against the desire of the owner, possessor, custodian or caretaker. Thus, the tort of trespass to chattel includes any interference, meddling, harm, injury, damage or destruction of goods against the desire of the person who has right to it.

The following cases will give clear illustrations of trespass to chattel. There circumstances vary but they are all on chattels.

In Davies v Lagos City Council (1973) 10CCHCJ 151, the defendant city council granted a hackney permit to the plaintiff to operate a taxi cab, which permit was meant for the exclusive use of the plaintiff. The plaintiff transferred the permit to a third party, whereupon the defendant council seized and detained the plaintiff‘s taxi cab. In an action for trespass to property, Adefarasin J. as he then was in the Lagos High Court held that although the defendant council was entitled to revoke the permit for non-compliance with regulations, however, it was not entitled to seize nor take possession of the plaintiffs vehicle. The defendant was therefore liable for trespass to chattel by seizing the plaintiff’s car.

In Fouldes v Willoughby (1841) 151 ER 1153, the defendant was the manager of a ferry boat. The plaintiff who was a passenger entered the boat with his horses. The defendant and the plaintiff had a dispute and in order to induce the plaintiff to leave the boat, the defendant disembarked the horses of the plaintiff from the ferry. The plaintiff who was not ruffled remained on the boat and crossed over to the other side of the river. The plaintiff then sued the defendant for trespass to the horses. The court held: that the defendant was liable for trespass to the horses, by moving them ashore. It was also held that there was no conversion as the plaintiff still had title.

In Kirk v Gregory (1878) 1 EX D 55, the movement of a deceased person's rings from one room in his house to another was held to be a trespass to chattel and nominal damages was awarded against the defendant.

In Haydon v Smith (1610) 123 ER 970, it was held to be a trespass for the defendant to cut and carry away the plaintiffs trees.

Also in G.W.K v Dunlop Rubber Co. (1926) 42 TLR 376, removing a tyre from a car, and replacing it with another tyre was held to be a trespass.

In Slater v Swann (1730) 93 ER 906, beating the plaintiff’s animal was held to be a trespass to chattel.

In Leame v Bray (1803) 102 ER 724, this was an accident between two horse drawn carriages. The defendant negligently drove his carriage and collided with the carriage of the plaintiff. The court held that the accident was a trespass to chattel and the defendant was liable in damages to the plaintiff for the damage done to the coach of the plaintiff.

Elements of Trespass to Chattel: What a Plaintiff Must Prove To Succeed

To succeed, a plaintiff must establish that the act of trespass was:

1. Intentional; or
2. See National Coal Board v Evans & Co. (1951) 2 KB 861 and Gaylor & Pope v Davies & Sons (1924) 2 KB 75.

As a general rule, proving intention or negligence is very important as trespass to chattel is not a strict liability tort. However, accident, intentional or negligent trespass do not automatically give rise to liability per se, as an appropriate defence, may be pleaded to avoid liability.

The Persons Who May Sue For Trespass to Chattel

Anyone who has possession or caretakership of a chattel may sue any other person who meddles with the chattel. This is so for the object of the tort of trespass is to protect possession, or the right to immediate possession. In other words, anyone who has possession or right to immediate possession can sue. Accordingly, some persons who do not have legal right are deemed by law to have possession, so that they will be able to protect chattels left under their care. For instance, an employee to whom an employer has given custody of goods, a repairer, caretaker, personal representatives of a deceased and so forth. Therefore, the persons who may sue for trespass to chattel, provided they have possession at the material time of the interference include:

1. Owners
2. Bailees
3. Lenders
4. Assignees
5. Trustee
6. Finders
7. Custodians
8. Caretakers
9. Adverse possessors, because mere possession gives a right to sue to retain possession
10. Executors
11. Administrators of estates;

In National Coal Board v Evans & Co. (supra), the defendant contractors were employed by a county council to work on land owned by the defendant council. A trench had to be dug, which the defendants employed a sub-contractor to do. An electric cable passed under the land, but neither the council, nor Evan & Co. who were head contractors, nor the sub-contractors knew this, and the cable was not marked on any available map. During excavation, a mechanical digger damaged the cable and water seeped into it causing an explosion, and thereby cutting off electricity supply to the plaintiff’s coal mine. The plaintiff sued claiming damages for trespass to the electricity cable. The court held that in the absence of establishing negligence on the part of the defendant contractors, there was no fault and there was no trespass by the defendants. The damage was an inevitable accident.

SELF ASSESSMENT EXERCISE 1

Who may sue for trespass to chattel?

The Defences for Trespass to Chattel

In an action for trespass to chattel, the defences a defendant may plead include:

1. Inevitable accident
2. Jus tertii, that is, the title, or better right of a third party, provided that he has the authority of such third party. See O.P. v Oguntayo (1993) 6 NWLR pt. 299, p. 259 SC.
3. Subsisting
4. Subsisting bailment
5. Limitation of time, as a result of the expiration of time specified for legal action.
6. Honest conversion, or acting honestly,etc.

The Remedies for Trespass to Chattel

The remedies available to a person whose chattel has been meddled with, short of conversion or detinue are:

1. Payment of damages
2. Replacement of the chattel
3. Payment of the market price of the chattel
4. Repair of the damage.

A frequent demonstration of these remedies is in motor accident cases. Where one vehicle runs into another, damages may be paid, or the parts of the vehicle that are affected may be replaced or repaired.

CONCLUSION

There will be trespass to chattel whenever there is a physical and intentional interference with goods of which the right of possession lies in a plaintiff. The intervention must be direct, physical and intentional and the plaintiff must have possession

SUMMARY

In this unit we discussed

1. the definition of chattel
2. outline the differences between trespass to chattel conversion and
3. Explain the elements of trespass to chattels
4. Enumerates the remedies for trespass to chattels.

TUTOR MARKED ASSIGNMENT

With the aid of decided cases, explain the differences between trespass to chattel, conversion and 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.
6. The Criminal Procedure of the Northern States of