Detinue is a right involving the defendant’s retention of property belonging to the plaintiff after the plaintiff has demanded its return. The action in detinue lies where:
- The plaintiff has an immediate right to the possession of goods, and
- The defendant, who is in actual possession of those goods, fails or refuses to deliver them up after the plaintiff has made a proper demand for their return.
Detinue thus covers the same ground as conversion by detention; however, there are the following differences between the two causes of action:
The defendant will not be liable for conversion by detention where, prior to the demand for their return by the plaintiff, the goods have been lost or destroyed, whether by accident or by the negligence of the defendant.
But the defendant will be liable in detinue in such circumstances, unless he proves that the goods were not lost or destroyed through his negligence. See the case of Coldman V. Hill (1919) 1 K.B. 443; In this respect, therefore, liability in detinue is stricter than in conversion by detention.
2. Refusal to surrender on demand is the essence of detinue, but it is only one of several forms of conversion.
In detinue the plaintiff can claim specific restitution of the goods, but he cannot do so in conversion.
Thus if the plaintiff wishes to recover the goods in specie and not merely their value in the form of damages he must sue in detinue for in conversion the defendant always has the option of keeping the goods and paying their value as damages. See the case of Whiteley V. Hilt (1918) 2 K.B. 808 at p.824.
Even in detinue, however, the court’s power to order specific restitution is discretionary and “ought not be exercised when the chattel is an ordinary article of commerce and of no special value or interest, and not alleged to be of special value to the plaintiff, and where damages would fully compensate.” See the case of Darefooh V. Karam (1941) 7 W.A.C.A 113 where it was held that the trial judge had rightly refused to order specific restitution of a lorry.
See also Oluwa Glass Co. V. Ehinlawo (1990) 7 NWLR pt.160 pg. 14 where it was held that in an action for detinue a successful plaintiff is entitled to an order of a specific restitution of the chattel or in default its value and also damages for its detention up to the date of judgment.
Conversion – Detinue
Conversion is the intentional dealing with or exercise of control over a chattel which seriously interferes with the plaintiff’s possession or right to possession of such chattel.
Conversion is similar to trespass in that it primarily protects possession rather than ownership of goods, and there are undoubtedly many acts of interference with goods, and there are undoubtedly many acts of interference with goods which will give rise to liability for both torts; see the case of Davies V. Lagos City Council (1973) 10 CCHCJ 151; Tornnekpey V. Ahiable (1975) 2 G.L.R. 432., but conversion differs from trespass in that:
- In conversion the interference must be intentional whereas in trespass it may be intentional or negligent;
- Unlike in trespass, in conversion it is not necessary for the plaintiff to have had actual possession of the goods at the time of the interference: it is sufficient if he had an immediate right to possession;
- It is not conversion merely to move a chattel from one place to another without any intent to take possession of it or dispute the owner’s title, but such act would amount to trespass.
An example of conversion is the famous Ghanaian case of Tormekpey V. Ahiable. There the defendant had sold and delivered a lorry to the plaintiff under a credit sale agreement, the effect of which was that property in the lorry passed to the plaintiff on delivery, with no right of seizure reserved to the defendant upon any contingency. Several months later, the defendant wrongfully seized the lorry and refused to hand it back to the plaintiff. The Court of Appeal of Ghana held the defendant liable in conversion as well as in trespass and detinue. Anin J.A. said:
“The learned (trial judge) found as a fact that at the date of the defendant’s seizure of the lorry the plaintiff had made part payment of the purchase price. He held, correctly in our respectful view, that the seizure of the lorry was wrongful in the circumstances. Since the contract was one for outright sale with no contingent right of seizure reserved.
To him the defendant could not legally seize the lorry, property in which had duly passed to the plaintiff on delivery. Even if the plaintiff defaulted in paying the balance of the purchase price, the defendant’s remedy was to sue for balance of the purchase price. Accordingly, the trial judge was right in holding that the plaintiff had established his claim.