Trespass refers to the unlawful interference with a person, property or right1.

History of trespass to goods

Trespass to goods started developing during the feudal period after the collapse of
the Roman Empire due to the development of trade which affected slavery a source
of labor which was got through wars and conquests. The law that was developed in
this period was pre occupied with protecting the interests in land. This was in a
way a counter action of the 1215 magna carter that had in sense tried to protect the
rights of the serfs and the law was basically in form of writs which were in a sense
the cause of action thus the introduction of writ of trespass. The writ of trespass
was introduced towards the end of the thirteenth century and was the foundation of
all torts both civil and criminal in nature as it would end up in punishment of the
defendant as well as compensation of the victim. The west minister statute allowed
court to create new writs which are meant to cover situations and circumstances
which didn’t exactly fit in the existing writs so as to provide remedies to deserving
litigants. This new writ covers situations where trespass was not a direct
consequence of the actions of the defendant and couldn’t form under the traditional
writ of trespass thus being analogous to trespass meant to remedy consequential
trespass and was called trespass on the case. The trespass in the case covers the
case of interference with the plaintiff’s possession body, land and or goods and
must have suffered a serious loss by the defendant’s actions. The trespass to goods
again evolved during the Mercantilism era.

TRESPASS TO GOODS

According to Salmond Law of Tort 16th Edition He states that trespass to goods
consists in committing without lawful justification of any act or direct physical
interference with the chattel in possession of another person for example through
killing beating, killing, destroying. In addition, trespass to goods also protects
against un authorized interference with some one’s possessory rights in personal
property. In Uganda this recognized and enforced to safe guard individuals and
business rights over there goods.

1
According to the black’s law dictionary
In the case of Departed Asians custodian Board v Issa Bukenya 2, the court
provided that trespass to goods consists of the unlawful disturbance of the
possession of the goods by seizure, removal or by a direct act causing damage to
the goods. Therefore, tort acts to protect a person’s interest in the thing they
possess.

Trespass in Uganda is made up of three types namely;

 Trespass to chattel
 Conversion
 Detinue

Trespass to Chattel

According to Kapoor in he’s book law of tort he defines Trespass to Chattel to

mean a tort where the infringing party has intentionally interfered with another
person’s lawful possession. It involves direct or indirect physical contact or
handling of a chattel without permission. Trespass to chattel is actionable parse
meaning that there is no need of proving.

PURPOSES OF T0RT OF TRESPASS TO CHATTELS;

 Protects all chattels, goods or properties of a person who has a title or

possession by prohibiting or interferences without legal justification.
 Protects the rights of ownership or possession of Chattels from wrongful
interferences.
 Protects goods against damages distraction, conversion, dentine among
others

ELEMENTS OF TRESPASS TO CHATTELS

Possession;

Trespass to goods is unjustifiable interference with a possession, here the plaintiff

must be in possession of the goods and if he or she has no title of possession he
can’t maintain the action of trespass to he’s goods. ln this case there need to
distinguish between the ownership and possession because it requires actionable

2
Civil app 26 of 1992
possession. So mere possession of ownership is not enough, it requires the plaintiff
to have full control over chattel when the trespass occurred.

Exemptions to Possession

 The trustee can bring an action against any third party on the strength of he’s
right to immediate possession.
 In case it is bailment, the bailer can sue for trespass of goods against the
bailee or servant
 An executor or administrator can sue incase he’s the owner of the goods
 Possession is taken to be essential because even a person who has taken
possession of the goods wrongfully can sue for trespass against the third
party. It is elaborated in the case of Wilson VS Lombank3 where the plaintiff
purchased a car from a person who had a right of saving it so he took the car
for repair to the garage and the defendants servants thought the car belonged
to the finance company which employed him. He took the car without the
consent of the garage owner but in fact the car belonged to the finance
company. The plaintiff sued the defendant for the value of the car and it was
held that the plaintiff was entitled to recover the value of he’s car.

Direct Physical Interference;

Interference must be direct and not consequential. This is provided in the case of
Kirk VS Gregory 4the person died in a state of dilemma the servants and the other
persons were drinking and feasting in the house. The defendant was the sister-in-
law of the deceased removed the curtain rings from the room where the dead body
was body was for safety and kept them in another room and they were stolen. So,
an action was brought against her by the executor or the deceased and was held
liable for trespass for loss of goods.

Dispossession, movement, destruction and damage all amounts to interference. in

the case of penfolds Wines v Elliot 5, where the defendant used the plaintiff’s
wine bottles in the manner which was totally repugnant to the purpose of the
bailment since the bottles were said to be the property of the owner at all times and
3
(1996) 1 WLR
4
(1876)1EX
5
(1946) 74 CLR 204
thus this was held to be interference with the goods. Therefore, merely using goods
can amount to interference.

In other words, physical contact is not always necessary as it is stated by Salmond

in his book Law of Tort that Trespass is actionable parse6.

1. Without Lawful Justification;

According to Salmond’s Law of Tort, he states that when one does a wrongful
interference to goods but in regards to of securing property will not amount to
trespass of goods. For example, when one kills or attacks a dog with lawful
excuses of protecting one’s life or property, he or she won’t be liable for trespass.

2. Intent;

The defendant must have intended to perform the act that resulted into interference.
This doesn’t require and intention to harm merely intending to engage in an act is
sufficient. For instance,

If a person mistakenly takes someone else’s property believing it to be their own

they can still be liable for trespass.

3. Causation;

The defendants’ actions must have directly caused the interference. This means
that the interference must be a result of the defendant’s violation act not an
accidental occurrence.

Damages

According to Chris Turner unlocking torts fifth edition; States damages are
momentary compensation awarded to the injured parties for example the
compensatory damages and these are intended to compensate the plaintiff for the
actual law suffered. It is got in a way that if someone trespasses on your land and
causes to your crops you can claim for compensatory damages for the loss of those
crops.

Another type of damage can be Nominal damages;

6
These refer to small amounts awarded when a legal right is violated but no
substantial harm is done. For instance, if someone enters your property without
permission but because no damage you may not still receive Nominal damages
unless it’s a court order.

He still provides for another type of damages and this is the Punitive Damages,
these are awarded to punish the defendant for the particular wrong conduct and the
deter similar behavior in the future an example here is when a trespasser repeatedly
enters your property despite warnings, punitive damages might be awarded.

Injunctions;

According to Salmond’s Law of Tort he states that an injunction is a court order

that either restrains a person from continuing a trespass or compiles them to take
certain action. And these are obtained in two types namely prohibitory injunction
according to Chris Turner unlocking law of Torts he says this prevents the
trespasser from continuing the trespass for instance if someone is building a
structure on your land without permission, a prohibitory injunction can stop them
from continuing the construction the construction as it is provided under Section
33of the Judicature Act.

Replacement of the Chattel;

In cases where the chattel is damaged beyond repair, the plaintiff may seek the
relationship it is got in a way that if someone destroys a borrowed item the owner
can request a new item for similar values

POSSIBLE DEFENSE UNDER TRESPASS TO GOODS.

Consent;

According to Chris Turner in his book unlocking torts, says that a person who
gets any chattel with the consent of one in possession. May not be liable for
trespass. Consent can be expressed or implied.

Necessity:
 lf one does an act in accordance with the defense of necessity, he/she cannot
be liable for trespass. According to Salmond in his book law of tort he says, that
for the defense to sustain, in must have done with lawful justification.

Inevitable accident;

This is when an act without the intention does, and do the defense can be
raised by the defendant and he/she may not be liable for the cause of action.
Conversion

According to A Johnston and Markedinis in their book Torts law, conversion

refers to any dealing with another’s property in a way which amounts to denial of
his right over it.

According to Sir John Salmond7 (Law of tort) 21st edition Pg 97-98 defines
conversion as an act of willful interference without lawful justification, with any
chattel in a manner which is inconsistence the right of another whereby that other
person is deprived of the use or possession of it.

Conversion is any dealing which denies a person of the title, possession or use of
the chattel. It is a dealing with a chattel which belongs to another person in manner
that is inconsistent with the right of the person.

In other words, conversion involves wrongful taking, wrongful detention and

wrongful deposition of the property of another person. 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.

Therefore, conversion consists in a willfully and without any justification dealing

with goods in such a manner that another person, who is entitled to immediate use
and possession of the same, is deprived of them.

Conversion in actionable per say in a way that it does not need to prove damages.

Examples of conversion include;

Wrongful delivery: this is where a person’s chattel is wrongfully delivered to

another person who does not have title or right to possession without legal
justification thus conversion. Which was explained in Youl v Harbottle8, where
the defendant a carrier of goods by mistake delivered the Plaintiff’s goods to a
wrong person. He was held liable of conversion for the loss of goods, it follows
that if an act of interference with a chattel is intentional or willful, it is not a
defense that the tort was done by mistake even if the mistake is honest, that is in
good faith or innocently.

7
1996
8
(1791) 170 ER 81
Taking. where a defendant takes a plaintiff’s 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. However mere
taking possession of the goods without the intention of having a temporary or
permanent dominion over it would constitute trespass but not conversion. In the
case of Carritt Moran and co v Manmatha9 where the trespasser wrongfully
obtained some green tea leaves from the tea garden of the plaintiff and the
trespasser later dried the leaves and converted the green tea leaves into black tea
leaves. The auctioneer, on behalf of the trespasser sold the black tea leaves for
monetary benefits. The court held that both the trespasser as well as the auctioneer
were liable for trespass and conversion.

Using; using a plaintiff’s chattels as if it is one’s own such as by wearing the

plaintiff’s jewelry. In the case of Peter v Heneage 10, where Peter the plaintiff
entrusted 37 barrels of brandy to Heneage the defendant for storage. Heneage sold
the brandy without Peter’s authority. Peter sued Heneage for damages. Court held
that Heneage was liable for conversion, ruling that interfering with another’s goods
without authority constitutes conversion.

Alteration.by changing its form howsoever. In the case of Carritt Moran and co
v Manmatha11 where the trespasser wrongfully obtained some green tea leaves
from the tea garden of the plaintiff and the trespasser later dried the leaves and
converted the green tea leaves into black tea leaves. The auctioneer, on behalf of
the trespasser sold the black tea leaves for monetary benefits. The court held that
both the trespasser as well as the auctioneer were liable for trespass and
conversion.

Wrongful refusal to return a chattel. In the case of Debendronath Mullick v

Odit Churn Mullick 12 the defendant refused to deliver the idols to the plaintiff
which prevented the plaintiff from worshipping the idol and performing religious
rituals on the specified date of delivery thus the act was held valid grounds for the

9
(1941) ILR1 Cal 285
10
(1701) 2 Ld. Raym 1204
11
(1941) ILR1 Cal 285
12
(1878)
aggrieved party to file a suit for damages and hold the tortfeasor liable for
conversion.

Detention. If the tortfeasor asserts their right over the possession of goods
/property of the plaintiff and refuses to deliver it back to them thus this amounts to
conversion by keeping, refusal of returning the goods with a lawful justification
does not constitute conversion by keeping for instance if a railway employee
refuses to deliver the goods of the consignor because the former is unsure of the
latter’s title thus this can be termed as refusal qualified by law and thus does not
amount to conversion. In the case of Armory v Delamire13;A chimney sweeps boy
found a jewel and gave it to the jeweler for valuation. the jeweler knowing the
circumstances took the jewel, detained and refused to return it to the boy. the boy
then sued the jeweler for conversion and for an order for the return of the jewelry
to him. the court held that the jeweler was liable for conversion. The finder of the
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.

Differences between trespass and conversion.

 The degree of invasion to the possession of goods. In conversion there is

serious intervention to the possession of goods where the tortfeasor alters the
goods detained without any lawful justification. Therefore, the damage to
the personal property is so serious that the tortfeasor must be liable to pay
the value of the entire property whereas trespass is a lessor serious act of
invasion to the property that the tortfeasor must be liable only to the extent
of the injury caused to the plaintiff because of the wrongful detention of
goods.

The following factors determine the seriousness of the intervention;

The extent of the tortfeasor’s control over the goods detained.

Malicious intent behind detaining the goods/property.

The inconvenience or injury caused to the plaintiff due to the detention /destruction
of goods.

13
(1722)93 ER664
The degree of damage caused to the goods /property.

 Another difference is that 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 the case of Ashby v Tolhurst14 where the owner of a car left it in a
private car park after paying parking attendant and receiving a ticket from
him. while the car owner went around his business, the parking attendant
allowed a thief to drive off in the car after misleading the attendant into
believing that he was taking the car with the owner’s permission. The
owners of the car park admitted that the park attendant had been negligent,
but relying on an exclusion clause printed on the ticket denied liability
therefore the question then turned on whether the car owners had become
bailees of the car. The court held that the relationship between the parties
was of licensor and licensee and not of a bailor and bailee. The car owner
had merely been given permission to park in the car park. The owners of the
park had not received possession of the car.

It can also be defined as an assertion if a right inconsistent with his right, by

wrongfully taking, detaining or disposing of it. Conversion formally known as
trover is now governed by the torts Inference with Goods Act15 but the old
common law rules are still very relevant.

Who can sue under conversion.

The tort of conversion like other trespass to chattel, is mainly an interference with
possession. those who may sue under the tort of conversion include;

Owners;
14
(1937)2 KB242
15
1977
An owner in possession or who has the right to immediate possession may sue
another person for conversion. For example, the landlord has rented a furnished
accommodation for a fixed period and a third party commits an act of conversion
in regards to some furniture. Here, the landlord has no right to sue you but the
tenant may sue.

Bailees;

A bailee of a chattel may sue another person for conversion of a chattel bailed
with him. However, a bailor at will has a tittle to immediate possession of a chattel
he has deposited with a bailee and can maintain an action again to a bailee for
conversion. In the case of Winkfield16 p.42 at 60, where Winkfield a ship ran into
the other ship, the mails ship which sunk. The post master general though not the
owner of the mails in the ship that sunk was entitled to sue the owners of
winkfield, as a bailee in possession for the value of the mails that were lost in the
sand ship, it was held that Winkfield were liable and that was between the bailee
and the stranger.

Others persons may have right to immediate possession and therefore may be able
to sue another person for conversion of a chattel include,

Holders of lien and pledge;

Holder of lien is a creditor who has a legal right to retain possession of debtor’s
property until the debtor is satisfied, the property owner is known as lienee while
the creditor is referred to as the lienor or a lien holder. In contrast, a pledge
involves transferring possession of personal property to secure a debt, all the
property being returned once the obligation is being fulfilled. Unlike liens pledges
requires actual possession by the creditor however a lien should not deal with
goods in a poor or repugnant way to the owner’s interests. In the case of standard
electronics v stenner 17the plaintiff a assembled medical units for the defendant
who was at all times the owners of the units. The plaintiff had not been paid for
their work and they successfully sued the defendant in conversion when the
defendant was trying to move goods.

16
(1902)
17
[1960] NSWR 447
Finders. There are rules of law governing and applicable to finding a lost property
and these were given in the case of Parker v British Airways18 even though they
might be so hard to apply as listed below.

 A finder of a chattel acquires no right over it, unless it has been

abandoned or lost then he will take it under his care and control.
 He inquires a right to keep if 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 of his or her
employment, does so on behalf of his or her 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 land or building. Basing on this
principle, the rings found in the mud of a pool in the case of South
Staffordshire water co. v sharman19 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 Gas20

However, an occupier of the premises does not have superior rights to those of
the finder in respect of the 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 the case of parker v British Airways, the plaintiff was waiting in the
defendant airways lounge at Heathrow airport in London, England when he
found bracelet on the floor and 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.

18
1982 1 All ER 834 CA
19
(1896) 2 QB 44
20
(1886) 33 Ch D 562
In the case of Waverly BC v Fletcher21, the defendant was using a metal detector
in a spark owned by the claimant council, the defendant found a brooch and
reported this to the authorities. The coroner decided that it was not treasure trove.
The issue was then who could claim the brooch (claimant or defendant?). The
Court of Appeal ruled that the council had a better right to the brooch as it had
been found within or attached to land, rather than on the surface, it belonged to the
person who owned the soil and not the person who found the object. Any object un
attached to land when found becomes the lawful possession of the possessor and
not the person who found the object, only if the former has exclusive rights over
the land.

Buyers. In the sale of goods, the buyer has right to immediate possession after
paying for the goods and can therefore sue in conversion. In Hollins v Fowler 22,
Fowler and company the claimants sold thirteen bales of cotton to Bayley. Bayley
never paid Fowler but sold the cotton to the defendants, Hollin and CO, and they
also sold it to Micholls and CO who spun it into yarn. Thus, due to the fraud of
Bayley, the value of the cotton had been obstructed and the question was which of
the two innocent parties (the person who sold the cotton to the rogue or the person
who bought it from him) should bear the loss. It was held that the defendants, the
buyers were liable for conversion.

Assignees. A person who is given an assignment or a role under the assignor will
have that right to sue the third party for converting the goods or property he is
undertaking care off or authority over.

Licensees; Sometimes a licensee may be able to sue for conversion. In Northam v

Bowden 23, the plaintiff had a licensee to prospect certain land for tin, and the
defendant, without permission, carted away some of the soil on this land. The
plaintiff was entitled to maintain an action for its conversion.

Trustees. Due to the legal interest a trustee holds on behalf of the beneficiaries
therefore the trustee can sue a third party for interference with the goods or
property he is taking control of before the time when they are given to the
beneficiary.
21
1995] 4 All ER 756
22
1875
23
(1855) 11 Ex 70
ELEMENTS OF CONVERSION

Possession;

Basing on Chris Turner Unlocking Torts, he says possession alone may be

enough to take an action. For example, it occurs when goods are found. ln such
case, the finder will have an enforceable right to possession against everyone
except someone with a bitter rightly is elaborated in the case of Armory v
Delamirie 24, where a chimney sweep’s boy found a jewel. He took it to a jeweler
for valuation and the jeweler refused to return it. The jeweler was liable for
conversion.

Immediate right to possess;

Here a buyer or tenant has right to take possession of property or asset

immediately after the purchase agreement is signed without any delay or waiting
period. This element is explained Kapoor in book law of torts.

A lien or other equitable title;

A lien is a claim tag for examples, if one borrows money to buy a house and the
lender puts a claim tag on the property until you pay back the loan25. lf one fails to
pay, the lender can take the house. In other words, this requires one to have a title
on which he/she can base on when rising the claim tag.

Intention/mental element.

Under conversion, there must be intentional interference with the plaintiff’s

property or goods which should be with unlawful dominion exercised by the
defendant over the plaintiff’s goods thus negligence act alone will not amount to
conversion. Therefore, for this case conversion only will stand after proving the
intention of the defendant and that it was unlawful interference with the plaintiff’s
right of possession over the goods. In the case

Wrongful act.

24
[1721]1 stra 505
25
According to. Salmond
Conversion is a tort that involves the unauthorized interference with another’s
goods or chattels in a wrongful act involving detention, destruction and inference
of the tortfeasor with the plaintiff’s property or goods causing the later some
injuries or damages. In the case of peter v Heneage where peter the plaintiff
entrusted 37 barrels of brandy to Heneage the defendant for storage. Heneage sold
the brandy without Peter’s authority .Peter sued Heneage for damages and court
held that Heneage was liable for conversion ruling that interfering with another’s
goods in a wrongful manner without authority constitutes to conversion.

DEFENSES ONE CAN RAISE ON CONVERSION

Lawful authority;

A person who takes possession of goods with the consent of the owner may not
be liable for conversion26 for example; people who borrow books from the library
have lawful authority for possession of that book provided they are members.

Jus tertii;

It is no defense for the defendant to show that another person has a better
legal to possession of the goods than the claimant. This caused problem where in
the fact this was the case and could leave the defendant facing two legal actions,
one by the claimant and one by the person with a better title. To mitigate this
difficulty the torts Interference with Goods Act 27under section 8 enables a
defendant to show that a named third party has a better right than the claimant.

Necessity;

When one uses a defense if necessity after committing conversion, court may
consider the act and may not make him liable for act of conversion.

Authority of the law. The defendant may assert that they have the right to convert
the property in accordance with the court order or judgement.

Temporary retention

26
According to Chris Turner
27
1977
Privilege. When asserting the legal defense of privilege, the defendant asserts that
they had a right to deprive the rightful owner of their property in order to the
property or people from harm.

Interest. A defendant may assert that they had an interest in the property, such as
being a part owner of the property.

Consent is an absolute defense to conversion which a defender may assert when

the rightful owner gave the defender a permission to use or possess the property
and the defendant operated within the boundary of that consent.

Statute of limitation. There are certain periods of time in which the prosecution or
the person alleging they have been injured must charge a defendant or file a law
suit against the defendant. As such, if either of those parties failed to charge the
defendant within a specified period of time, or failed to initiate a law suit within
the specified period of time, the defendant can assert that the statute of limitation
has run and they barred from bringing those charges or a personal injury claimed.

Abandonment. The defendant may assert that the rightful owner of the property
abandoned the property, and as such they forfeited the legal ownership of the
property.

Subsisting bailment; A bailment is a legal relationship where one person

temporarily gives another person, the bailee, physical possession of their personal
property while retaining ownership. The bailee is responsible for returning the
property to the bailor when the purpose of the bailment is complete. It is a legal
defense that can be used in a conversion of a chattel.

Subsisting lien;

A lien is a form of security interest granted over an item of property to secure the
payment of a debt or performance of some other obligation. A subsisting lien is
one that is in force or effect. In the case of Hendershott v Shipman [1951],

Lack of value. The defendant may assert that the property alleged to have been
converted have no monetary value, and as such the rightful owner cannot prove
that they suffered any harm by the conversion.
Remedies of conversion

Retaking the goods;

The owner can take the goods from a person without a better title. This
remedy is of help but the owner needs to be wary of committing the trespass. The
owner must act peaceable and use no more force than is reasonable in the
particular circumstances.

Damages;

Where the defendant no longer has possession of the goods, damages will be fir the
value of the goods and any consequential loss which is not too remote. It is
provided in the case of Bodley Reynolds 28[1846]8 QBD 779 where a carpenter’s
tools were converted. He was awarded the value of the tools and additional sum of
£10 for his loss of earning.

28
[1846]8 QBD 779
TORT OF DETINUE

Detinue is a wrongful retention or detention of another person's chattel or

goods where by a person entitled to it is denied possession or use of it. It is a
claim of specific return, delivery or surrender of a chattel to the plaintiff who is
entitled to it. According to Salmond a claim in detinue lies at the suit of a person
who has immediate right to the possession of goods against a person who is in
actual possession of them, and who upon proper demand refuses to deliver them
up without lawful excuse. 29The action of Detinue is based upon a wrongful
detention of the plaintiff's chattel by the defendant's evidence by refusal to
deliver it upon demand. Therefore, for Detinue to occur there must have been
possession of the goods by the plaintiff before retention by the defendant, the
demand of the chattel, and refusal of return by the defendant.

In the case of Ogiugo & Sons Ltd v C. O. P30. 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.
Representation for its release failed to yield results. 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.

Elements of detinue are as follows

1. Possession: for the plaintiff to successfully sue for Detinue, he must have
immediate right to possession of the chattel or title of ownership. In the case of
Jarvis v Williams31, the plaintiff sold goods to Patterson. These goods were not
paid for. It was agreed between Patterson and the plaintiff that the goods would
be returned to the plaintiff. Patterson owed money to the defendant and refused

29
Salmond law of tort 1907 edition.
30
(1991)3 NWLR
31
(1995)6 NWLR
to return the goods. The plaintiff wanted to sue Patterson, but as he did not have
immediate right to possession he could not do so. But they would sue the
defendant. Thus, possession is an essential requirement to sue for Detinue.

2. Detention: the goods must have been in possession of the defendant at some
point and he must have refused to return the goods on demand, the defendant
would have denied the plaintiff the right to possession thus committing Detinue.
In the case of Kosile v Folarin32,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 that inter alia 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 loss for the use the vehicle until the date of judgement at the rate of
N20 per day.
In the case of Ajikawo v Ansaldo Nig. Ltd33. The plaintiff bought a generator from
its owner who asked him to collect it from the defendant's company who had
custody of it. The defendant indicated interest to buy it and refused to release it
to the plaintiff buyer. The plaintiff sued for the unlawful detention of the
generator. The court held that the plaintiff was entitled to the generator or its
value and also damages for the period of detinue till it was delivered up or its
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 judgement in the suit.

3.Demand for return: the plaintiff must have demanded for the return of the
property by the defendant. The defendant is liable as long as the plaintiff
demands for the chattel but he fails or refuses to return it thus the demand is
imperative. In Lloyd v Osborne34, the plaintiff's solicitor wrote to the defendant in
his client's instruction demanding the return of all sheep branded F or FG. The
court held that this was not a proper demand as there were insufficient
instructions regarding the demand, it needs to be a clear request including
32
(1989)3 NWLR 107 SC
33
1991)2 NWLR
34
(1899)20LR(NSW)190
instructions regarding the delivery of the goods and who they must be delivered
to.

4. Refusal to deliver or return: here the defendant must have refused to deliver
the property to the plaintiff. In the case of Howard Perry v BRB35. The defendant
refused to deliver steel that the plaintiff had purchased as they reasonably
believed that they would face industrial action from their employees if they did.
Court found this to be a sufficient refusal to bring about an action in Detinue.

When to sue for Detinue

A plaintiff can only sue for Detinue after satisfying the conditions below;

1. The plaintiff must have title to 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. Thus,
the defendant must have refused to return the chattel

Defenses of detinue

 Jus Tertil , the defendant may plead jus tertil meaning he is only a third
party who has a better right to possession. He can be an agent or has
paramount title that will enable him establish a better title and right of
possession.
 Consent, this defense shows that there can be no trespass if the
interference occurs with the plaintiff’s consent can either be expressive or
implied. Therefore, the defendant may claim to have consented with the
plaintiff before retention of the chattel
 Demand was invalid, if the demand has been made, it may be Confusing or
otherwise invalid therefore if the demand isn't valid then the refusal may
not have been unreasonable thus the defendant can claim a defense of
insufficient or improper demand by the plaintiff.
35
(1980)1WLR1375
  Subsisting lien on the chattel, this defense is sufficient where a chattel is
deposited to secure a loan or in mortgage. In the case of Otubu v Omtayo
36
, the plaintiff kept his title deeds with a third party who subsequently
deposited the deeds with the defendant as collateral to secure a loan. The
plaintiff sued the defendant for Return Of the title deeds. However, court
held that an action cannot succeed where there is a subsisting lien on the
chattel.
 Claim of delivery, the defendant may claim to have delivered the chattel to
the plaintiff on time.
 Innocent delivery, the defendant may claim to have innocently delivered
the chattel to another party whom he thought was the rightful owner of
the chattel.
 Right to possession, the legal ownership of a chattel can be implicated. The
defendant may provide proof that he is in immediate possession or the
rightful owner of the chattel. 37
Remedies for the tort of Detinue
1. Return the chattel, this is a claim of the return of specific chattel,
especially if the chattel has not changed its character, content and has
not been damaged or destroyed during detention.
2. Injunctions, this is a court order that restrains the defendant from
disposing off or damaging the property.
3. Replacement of the chattel, where appropriate a defendant may be
order to replace the chattel by supplying an identical or similar chattel
especially where a manufacturer is involved.
4. Market value of the chattel, 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 current market value of the chattel as
assessed. This is common in instances where the chattel has been
destroyed, damaged or lost.

36
(1995)6 NWLR
37
Chris Tuner unlocking law of torts
 5. Damages, this where plaintiff is awarded monetary damages. General
damages may be awarded as assessed by court; they are awarded to
cover part of the cost of the legal action.
6. Release on bond, this is a return of the goods on security, pending the
determination of the ownership of the chattel. It is the re-delivery to the
owner of goods which were wrongfully seized.
Difference between conversion and detinue
Detinue covers the same grounds as the tort of conversion by detention however
there is a difference.

 The is refusal to surrender or return the chattel on demand is essence of

detinue.
 Detinue is has a proper remedy where the plaintiff wants the return of
the specific goods in question and are not merely an assessed market
value.