The
tort of detinue is the wrongful detention of the chattel of another person, the
immediate possession of which the person is entitled. Detinue is a claim for
the specific return, delivery or surrender of a chattel to the plaintiff who is
entitled to it.
As a general rule, to successfully sue in
detinue a plaintiff must have possession before the detention or have the right
to immediate possession of the chattel. 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.
Although
detinue covers the same ground as conversion by detention; however, there are
differences between the causes of action; in that Where the goods prior to the
demand for their return by the plaintiff have been lost or destroyed, the
defendant will not be liable for conversion by detention. Also, refusal to
surrender on demand is the essence of detinue but it is only one of several
forms of conversion.
WHEN TO SUE FOR DETINUE
A
plaintiff can only maintain an action for the tort of detinue after satisfying
the 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 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.
A
Nigerian example of a successful action in detinue is udechukwu v okwuka. The plaintiff bought a kit car from the
defendant and, after the sale, left it on the defendant’s premises, having told
his (plaintiff) driver to hand over the earnings of the car to the defendant
for safekeeping. Later when the plaintiff went to collect the car, the
defendant refused to allow him to take it away until the defendant saw the
driver. Even though it was argued that his refusal was not categorical but
merely conditional, The West African Court of Appeal held the defendant liable
in detinue.
Also
in west Africa Examination Council v Koroye. The plaintiff
sat for an examination conducted by the defendant council. The defendant
negligently refused to release his certificate. The plaintiff successfully
claimed in detinue for his certificate and was awarded damages in lieu of the
release of the certificate by the supreme court.
THE DEFENSES FOR DETINUE
In
an action for detinue, a defendant may
plead that :
·
He
has mere possession of the goods
·
That
the plaintiff has insufficient title as compared to himself
·
The
defendant may plead Jus terti, that
is that a third party has a better title, provided the defendant is the agent.
·
Innocent
delivery
·
Subsisting
bailment
REMEDIES FOR DETINUE
When
a person’s chattel is detinue is detained by another person who is denied
possession has the following remedies.
·
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.
·
Where
possible, a defendant may be ordered to replace the chattel by supplying an
identical or similar chattel. This is possible for instance in the case of
manufacturer’s products who can easily replace the goods by supplying a similar
product.
·
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 the
person detaining it, using only reasonable force after he has made a demand for
their return.
THE THREE OF TORTS OF TRESPASS
The three torts of trespass; chattels,
conversion and detinue protect the possessor of a chattel from wrongful
interference therewith. These three form of trespass to chattel are each
actionable per se upon commission or occurrence without the plaintiff having to
prove damages. For the purpose of exposition, however, each tort must be
considered separately.