Meaning and Ingredients of Tort of Detinue:
Detinue
An action for detinue is always commenced in the court to recover a property (chattel) in the possession of a person who doesn’t have possessory right on the property. In detinue, the defendant must be in wrongful detention of the property belonging to the plaintiff which the plaintiff has served him a proper demand for the property to be returned back to him, which the defendant blatantly refused without legal justification. This entail that if the defendant holds on the possession of the chattel with legal justification, an action for detinue by the Plaintiff will not succeed.
The Defendant has to established that he has right of possession to the property whether actual or immediate and that such right has been disturbed by another person who doesn’t have right to do so. Meanwhile, just like other actions for trespass to chattel, detinue is an action against possession and not ownership. The claimant must have possessory right on the property that has been detained by the defendant, who doesn’t have legal justification for such unlawful detention.
READ ALSO: Trespass to Chattel and It’s Elements
For a Detinue to succeed in the court, the defendant must establish in the court that his chattel was wrongly detained by a person who doesn’t have lawful justification for such a detention. He has also demanded from the person that the property should be released but he blatantly refused.
Case Considered:
West Africa Examination 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.
Defence of Detinue
The Defendant can raise the following defence for an action for Detinue:
- Subsisting Bailment: the defendant can argue that he is holding the property as a result of the subsisting bailment agreement that he has with the Defendant on the said property. The parties are involved in bailment agreement are the Bailee and the Bailor.
- Subsisting Lien on the Chattel: The Defendant can also argue that he has a subsisting lien on the said property (Chattel)
- Temporary retention of the chattel to enable steps to be taken to check the title of the plaintiff
- Inevitable accident: this is possible when the property was detained by the defendant by accident.
- 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 and so forth.
READ ALSO: Possession Meaning and types of possession
The Remedies for Detinue
- Replevin: He can easily recover back his property from a party who is just holding the property pending the determination of the rightful owner of the property from the contesting parties. 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.
- 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. This damages may be as a result of the fact that he has not be making using of the said property which the defendant has been detaining.
- A person who is entitled to possess 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 made a demand for their return.
- Claim for return of the chattel: where it would be possible, the defendant may order for the return of his property when the property has not changed in its character.