Trespass to Chattel

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.

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 a chattel without causing any harm to it may in appropriate circumstances be actionable and entitled the plaintiff to get nominal damages.

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.

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

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

The three forms of trespass to chattel are each actionable per se upon commission or occurrence without the plaintiff having to prove damage.

In Erivo v Obi, 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.

The types of trespass to chattel include:

Trespass to chattel per se;
Conversion; and
Detinue

Trespass to chattel per se

In the wider context, the tort of trespass is closely related to any tort or law which has to do with the protection of interest in personal property such as protection of interest in personal property such as negligence, malicious damage such as arson and other damage to property or interest in property.

Trepass to chattel is any direct and unlawful interference with the chattel in the possession of another person the interference may either be negligent or intentional. Another author said that it is a wrongful physical interference with goods and it could take the form of numerable or innumerable interference.

In the case of Davies V. Lagos City Council, Justice Adefarasin elaborately explained that trespass to chattel is actionable per se. in that case, the defendant council had granted the plaintiff a hackney carriage licence to operate a taxi cab in the Lagos area. The plaintiff was well aware that the permit was for exclusive use and was not transferable but he nonetheless caused it to be transferred to a 3rd party who operated a taxi cab on the strength of it on leaving that, certain officials of the council in the purported exercise of their power to revoke the permit, seized the plaintiff’s taxi and detained it at the LCC pound. In an action brought by the plaintiff for trespass, Adefarasin J held that the council was entitled to revoke the plaintiff’s permit for non-compliance with the regulations governing the use of hackney carriage licenses, but it was not entitled to seize the vehicle or otherwise take possession of it. The council was therefore liable to trespass.

It is no defence in an action for trespass to chattel that the tort was committed when carrying out the instruction of the executive arm of government as distinct from the judicial arm.

In Ajao V. Ashiru, the plaintiff’s pepper mill was seized by the defendant and the defence to the claim of the plaintiff was that the peppermill was seized by the police. The court held that the defendant was liable based on the ground that the police acted at his own instance in seizing the peppermill of the plaintiff.

The keyword in trespass to chattel is possession of the claimant is not in possession at the time of the alleged meddling or interference, he cannot sue for trespass. Only the person who has the right of possession or immediate possession can sue.

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: Owners, Bailees, Lenders, Assignees, Trustees, Finders, Custodians, Caretakers, Adverse possessors, because mere possession gives a right to sue to retain possession 10. Executors 11. Administrators of estates; etc.

In National Coal Board v Evans & Co, 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.

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:

Taking a chattel away.
Throwing another person's property away, such as in annoyance.
Mere moving of the goods from one place to another, that is, mere transportation.
Scratching or making marks on the body of the chattel, or writing with finger in the dust on the body of a motor vehicle.
Killing another person's animal, feeding poison to it or beating it.
Destruction, or any act of harm or damage.
Touching, that is, mere touching, for instance, touching a precious work of art which could be damaged by mere touch.
Use, that is, mere using without permission.
Driving another person's car without permission.
Filling another person's bottle with anything.
Throwing something at the chattel.
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.

Defences for trespass to chattel

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

Inevitable accident.
Jus tertii, that is, the title, or better right of a third party, provided that he has the authority of such third party. See C.O.P. v Oguntayo (1993) 6 NWLR pt. 299, p. 259 SC.
Subsisting lien.
Subsisting bailment.
Limitation of time, as a result of the expiration of time specified for legal action.
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:

Payment of damages.
Replacement of the chattel.
Payment of the market price of the chattel.
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.

Conversion

According to Sir John Salmond,

A conversion is an act... of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it.

Conversion is any interference, possession or disposition of the property of another person, as if it is one's own without legal justification. In other words, conversion is dealing with another person's property as if it is one's own. Conversion is any dealing which denies a person of the title, possession, or use of his chattel. It is the assertion of a right that is inconsistent with the rights of the person who has title, possession or right to use the chattel.

It is dealing with a chattel which belongs to another person in a manner that is i inconsistent with the rights of the person. In other words, conversion is any intentional interference with another person's chattel which unlawfully deprives the person of title, possession or use of it. Conversion includes wrongful taking, wrongful detention, and or wrongful disposition of the property of another person. Therefore, conversion includes denying a person of the title or possession, or use of his chattel. It is not necessary to prove that the defendant had intention to deal with the goods. It is enough to prove that the defendant interfered with the goods. It is immaterial that the defendant does not know that the chattel belongs to another person, for instance, if he innocently bought the goods from a thief. In criminal law, conversion is known as stealing or theft.

Essentially, conversion is:

Any inconsistent dealing with a chattel
To which another person is entitled to immediate possession
Whereby the person is denied the use;
Possession; or
Title to it.

Thus, an owner can sue for conversion. Likewise, a person who has mere custody, temporary possession or caretakership can sue any third party who tries to detain, dispose, steal or otherwise convert such chattel.

In North Central Wagon & Finance Co. Ltd v Graham, the defendant hire purchaser sold the car in contravention of the terms of the hire purchase agreement. In the circumstances the court held that the plaintiff finance company was entitled to terminate the hire purchase agreement and sue the selling hire purchaser in the tort of conversion, for recovery of the car.

Differences between conversion and trespass

Conversion is different from trespass to chattels in two main respects. These are:

In conversion, the conduct of the defendant must deprive the owners of the possession of the chattel, or amount to a denial or dispute of the title of the owner. Conversion is known as stealing or theft in criminal law.Therefore, mere touching or moving of a chattel and so forth, only amount to trespass.
To maintain an action in conversion, the plaintiff need not be in actual possession of the chattel at the time of the interference. It is enough if the plaintiff has right to immediate possession of the chattel, that is, the right to demand for immediate possession of the chattel.
In Ashby v Tolhurst, the defendant car park attendant who negligently allowed a car thief to drive away the plaintiff's car from a car park under his watch was held: not liable in conversion. The driver had possession of the car which he had parked, for he has right to immediate possession. The defendant car park attendant is a bailee who only guarantees the safety of the car that is bailed in the car park as a bailee. The claimant should have sued in the tort of negligence for the loss of the car.
In City Motor Properties Ltd v Southern Aerial Service, an owner of a chattel was held liable in conversion for dispossessing the plaintiff bailee of it, during the subsistence of the bailment, which was not unilaterally determinable at will by the plaintiff owner.
Also, in Hollins v Fowler, a cotton broker acting on behalf of a client, for whom he often made purchases, bought cotton from a fraudster who had no title to the cotton. The broker then sold it to his client and received only his commission. At the suit of the true owner for conversion sale, and loss of the goods, the court held: that the broker was liable in conversion for the full value of the goods.

Examples of conversion

Conversion of a chattel, belonging to another person may be committed in many different ways. Examples of conversion include:

Conversion by taking. Where a defendant takes a plaintiffs chattel out of the plaintiff s possession without lawful justification with the intent of exercising dominion over the goods permanently or even temporarily, there is conversion. Contrast this proposition with the decisions in the cases of Fouldes v Willoughby and Davies v Lagos City Council. Another example is the Ghanaian case of Tormekpey V. Ahiable, here the defendant had sold and delivered a lorry to the plaintiff on delivery, which was that property in the lorry passed to the plaintiff on delivery, with no right of seizure reserved to the defendant wrongfully seized the lorry and refused to hand it back to the plaintiff. The Court of Appeal of Ghana held that the defendant was liable in conversion as well as in trespass to detinue. On the other hand, a defendant may not be liable; if he merely moves the goods without denying the plaintiff of title.
Conversion by using. Using a plaintiff’s chattels as if it is one's own, such as, by wearing the plaintiff’s jewelry, as in the case of Petre v Heneage or using the plaintiff’s bottle to store wine as was the case in Penfolds Wine Ltd v Elliot is a conversion of such chattel. And to pour the contents of his carbolic acid drums into the defendant’s tank as seen in Lancashire and Yorkshire Rly Co V. McNicholl.
Conversion by consumption, destruction, or alteration. To intentionally destroy or consume the plaintiff’s chattel constitutes conversion. For example, where the defendant smashes the plaintiff’s window or drinks his brandy. Merely to damage the chattel is not conversion but trespass to chattel. In each case, it is a question of degree as to whether or not the damage is so great as to amount to destruction. It is also conversion to alter the identity of a chattel. For example, to sew cloth into a dress, to grind wheat into flour, or to turn grapes to wine. By changing its form howsoever. See Simmons v Lillystone and Hollins V. Fowler.
Conversion by receiving. Involuntary receipt of goods is not conversion. However, the receiver must not willfully damage or destroy the goods unless the goods constitute a nuisance. Receiving a chattel from a third party who is not the owner is a conversion. This is wrongful, for it is an act of assisting the other person in the conversion of the chattel, or the receiving of stolen goods.
Conversion by detention. In Armory v Delamirie, a chimney sweep's boy found a jewel and gave it to a jeweler for valuation. The jeweler knowing the circumstances, took the jewel, detained and refused to return it to the boy. They boy then sued the jeweler for conversion and for an order for return of the jewellery to him. The court held: that the jeweler was liable for conversion. A finder of a property has a good title, and he has a right or interest, to keep it against all persons, except the rightful owner of the property or his agent. However, a temporary reasonable refusal by the finder or custodian of a property to hand it over to a claimant, in order to verify the authenticity of the title of the claimant is not actionable, except where the refusal is adverse to the owner's better title.
Conversion by wrongful delivery. Wrongfully delivery of a person's chattel to another person who does not have title or right to possession without legal justification is a conversion.
Conversion by purchase. At common law, conversion is committed by a person who bought and took delivery of goods from a seller who has no title to the chattel nor right to sell them. Such as when a thief, steals and sells a chattel. A buyer in such a situation takes possession at his own risk, in accordance with the rule of law that acts of ownership are exercised at the owner’s peril.
Conversion by wrongful disposition. Such as by sale, transfer of title or other wrongful disposition. In Chukwuka v C.F .A.O. Motors Ltd, the plaintiff sent his car to the defendant motor company for repairs. Thereafter, he failed to claim the car. Nine months later the defendants sold the car to a third party who re- registered it in his own name. The plaintiff sued for conversion. The High Court held: that the defendant was liable to the plaintiff for conversion of the car.

Innocent receipt of delivery is not conversion

Generally, innocent delivery, or innocent receipt are not torts, nor criminal offences. Thus, innocent delivery is not conversion. Therefore, where an innocent holder of goods, such as, a carrier, or warehouseman, receives goods in good faith from a person he believes to have lawful possession of them, and he delivers them, on the person's instructions to a third party in good faith, there would be no conversion. Similarly, innocent receipt of goods is not conversion. However the receiver must not willfully damage or destroy the goods unless the goods constitute a nuisance.

In Unipetrol v Prima Tankers Ltd, the defendant oil tanker owners had a contract to carry Unipetrol's cargo of fuel from Port Harcourt. The captain of the vessel allegedly went elsewhere with the cargo of fuel. The plaintiff appellant Unipetrol sued for the conversion and loss of the cargo. The Court of Appeal held: that the respondents were liable in conversion. The word "loss" is wide enough to include a claim for conversion against a carrier. It is elementary law that in a claim for conversion, the claimant is entitled to the return of the article seized, missing, or in the possession of the other party, or reimbursement for its value.

In Owena Bank Nig. Ltd v Nigerian Sweets & Confectionery Co. Ltd, the 1st respondent was granted an import licence by the Federal Ministry of Trade to import granulated sugar. However, the 2nd respondent opened a letter of credit and imported the sugar. The 1st respondent sued for damages for the wrongful conversion of the import licence. On appeal by the bank, the Court of Appeal held: That the defendants were liable for conversion of the import licence papers.

Thus, an action for conversion will lie in conversion for any corporeal personal property, including papers and title deeds.

Conversion is any dealing with a chattel in a manner inconsistent with another person's right whereby the other is deprived of the use and possession of it. To be liable, the defendant need not intend to question or deny the right of the plaintiff. It is enough that his conduct is inconsistent with the rights of the person who has title, or right to possession, or use of it. Conversion is an injury to the plaintiff’s possessory rights in the chattel converted. Whether an act amounts to conversion or not depends on the facts of each case, and the courts have a degree of discretion in deciding whether certain acts amount to a sufficient deprivation of possessory or ownership rights as to constitute conversion.

In conversion, negligence or intention is not relevant, and once the dealing with the chattel of another person is in such a circumstance that the owner is deprived of its use and possession, the tort of committed.

Possession is title against a wrongdoer or stranger

At common law, mere de facto possession is sufficient title to support an action for conversion against a wrongdoer.

In C.O.P v Oguntayo, the plaintiff respondent brought action against the defendant appellant police, for the wrongful detention and conversion of his Mitsubishi van, which he drove to a police station on a personal visit to a police officer. The police impounded the vehicle on the allegation that it was a lost but found vehicle. The respondent asserted that he brought the van from a third party who was now deceased. The respondent sued the police claiming for the return of the van. On appeal, the Supreme Court held: that the plaintiff respondent was entitled to the release of the vehicle to him.

To establish conversion, the law is that what is required is proof of de facto possession and not proof of ownership. In the instant case, the impounding of the vehicle by the appellants police was unlawful and their failure to deliver it to the plaintiff respondent after demands for it constituted a conversion. The plea of jus tertii that is, the plea of the better title of a third party to, was not open to the police as it was not proved.

The rules regarding finding lost property

The rules of law applicable to finding a lost property were authoritatively settled by the English Court of Appeal in the case of Parker v British Airways. However, the rules are not often easy to apply. The rules applicable to finding lost property may be summarized as follows: -

A finder of a chattel acquires no rights over it, unless it has been abandoned, or lost, and he takes it into his care and control. He acquires a right to keep it against all persons, except the true owner; or a person who can assert a prior right to keep the chattel, which was subsisting at the time when the finder took the chattel into his care and control.
Any servant, or agent who finds a lost property in the course his employment, does so on behalf of his employer, who by law acquires the rights of a finder.
An occupier of land or a building has superior rights to those of a finder, over property or goods in, or attached to the land, or building. Based on this rule, rings found in the mud of a pool in the case of South Staffordshire Water Co. v Sharman and a pre-historic boat discovered six feet below the surface were held as belonging to the land owner in the case of Elwes v Briggs Gas.
However, an occupier of premises does not have superior rights to those of a finder in respect of goods found on or in the premises, except before the finding, the occupier has manifested an intention to exercise control over the premises, and things on it. In Parker v British Airways, the plaintiff was waiting in the defendant airways lounge at Heathrow Airport, London, England when he found a bracelet on the floor. He handed it to the employees of the defendant, together with his name and address, and a request that it should be returned to him if it was unclaimed. It was not claimed by anybody and the defendants failed to return it to the finder and sold it. The English Court of Appeal held: that the proceeds of sale belonged to the plaintiff who found it. See also South Staffordshire Water Co v Sharman and Waverley Borough Council v Fletcher. In Bridges v Hawkesworth, the plaintiff finder of a packet of bank notes lying on the floor, in the public part of a shop was held entitled to the money instead of the shop owner, upon the failure of the rightful owner to come forward to claim the money. See also Hannah v Peel and Moffatt v Kazana.

As a general rule of law, anybody who has a finder's right over a lost property, has an obligation in law to take reasonable steps to trace the true owner of the lost property, before he may lawfully exercise the rights of an owner over the property he found.

Who may sue for conversion?

The tort of conversion, like other trespass to chattel, is mainly an interference with possession. Those who may sue in the tort of conversion include:

Owners. An owner in possession, or who has right to immediate possession may sue another person for conversion.
Bailees. A bailee of a chattel may sue another person for conversion of a chattel or goods bailed with him. However, a bailor at will has title to immediate possession of a chattel he has deposited with a bailee and can maintain action against a bailee for conversion. In The Winkfield (1902) P. 42 at 60, a ship ran into another ship, a mailship which sank. The Post-Master General though not the owner of the mails in the ship that sank was held entitled to sue the owners of the Winkfield, as a bailee in possession for the value of the mails that were lost in the sunk ship. COLLINS MR in the English Court of Appeal held: that the owners of the Winkfield were liable and that “As between a bailee and a stranger, possession gives title.
Holders of lien and pledge.
Finders, see Armory v Delamirie, London Corp v Appleyard and Hannah v Peel.
Buyers.
Assignees.
Licenses.
Trustees.

Defences for conversion of a chattel

Jus tertii, that is, the title or better right of a third party.
Subsisting bailment.
Subsisting lien.
Temporary retention; to enable steps to be taken to check the title of the claimant. A defendant may temporarily, refuse to give up goods, while steps are taken to verify the title of the plaintiff who is claiming title before the chattel is handed over to the plaintiff if he is found to be the owner, or has right to immediate possession.
Limitation of time.

Who may plead jus tertii

Jus tertii is the right of a third party. It is the title or better right of a third party to the chattel, goods, or property in dispute. As a general rule, a defendant cannot plead that a plaintiff is not entitled to possession as against him, because a third party is the true owner of the chattel. A defendant can only plead jus tertii, that is, the better right of the true owner or third party only when he is acting with the authority of the true owner. In C.O.P v Oguntayo, OGBUEGBU JSC stated the law clearly that:

A person cannot plead jus tertii of a third party, unless the person is defending on behalf of, or on the authority of the true owner. In the instant case, the appellant claims title on behalf of an unknown owner, but as the third party is not discoverable and the respondent has made out a good prima facie case of title by possession, the respondent has title as against all other persons including the appellants.

Therefore, for a defendant to successful plead jus tertii, that is, the better right of a third party who has right to immediate possession, the identity of such true owner, or third party must be disclosed, his title or better right to immediate possession must be established, and the defendant must be claiming for, on behalf, or under the title of the alleged true owner, or third party who has a better right to immediate possession.

The remedies for conversion

In a claim for the conversion of a chattel several remedies are available to a plaintiff. The court in its judgment may order any, or a combination of any of the following reliefs:

Order for delivery, return or specific restitution of the goods; or
Alternative order for payment of the current market value of the chattel.
An order for payment of any consequential damages. However, allowance may be made for any improvement in the goods, such as, where a person honestly in good faith buys and improves a stolen car and is sued by the true owner; the damages may be reduced to reflect the improvements.
Recovery of special and general damages. Special damage is recoverable by a plaintiff for any specific loss proved.
General Damages: Furthermore, where for instance, a plaintiff whose working equipment or tools are converted by another person, a plaintiff may sue for the loss of profit, or existing contract or wages for the period of the conversion of the work tools or equipment.

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. It 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: the wrongful detention of the chattel of another person 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 are many and include the following:

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.
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:

The plaintiff must have title that is ownership or right to immediate possession of the chattel.
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, 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.

In West Africa Examinations Council v Koroye, 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, 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. In Steyr Nig. Ltd v Gadzama, 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.

In Shuwa v Chad Basin Development Authority, 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.

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.

In Otubu v Omotayo, 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.

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:

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.
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

He has mere possession of the goods.
That the plaintiff has insufficient title as compared to himself.
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”.
Innocent delivery.
Subsisting bailment.
Subsisting lien on the chattel. See Otubu v Omotayo.
Temporary retention of the chattel to enable steps to be taken to check the title of the plaintiff.
Inevitable accident, see National Coal Board v Evans.
Reasonable defence of a person or property, such as when one beats or injures a dog that was attacking him or another person.
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, etc.

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:

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.
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.
Claim for the market value of the 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.
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. 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.
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.
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.