detinue

Detinue is the wrongful detention of a plaintiff’s chattel by a defendant, which is evidenced by refusal of the defendant or his agent to deliver the chattel up on demand. Detinue consists in the wrongful withholding of the plaintiff’s goods. It is immaterial whether the person or the wrongdoer obtained possession of the detained goods lawfully or illegally or by seizure. What is material is the wrongful retention of the chattel by the defendant. It is therefore material that, to sustain an action in detinue, there must be demand by the plaintiff and on the receipt of this notice, the defendant persisted in keeping the chattel. Umoru v. Ijumu L.G.C. (2010) 7 NWLR (Pt. 1192) 1.

The difference between the tort of detinue and other torts involving interference with a person’s chattel is that a claim in detinue allows for a remedy of damages for the value of the chattel, but unlike most other torts involving interference, the recovery of the specific chattel being withheld. 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.

According to the case of M.F. Kent Ltd. v. Martchem Industries Ltd. (2002) 8 NWLR (Pt. 669) 459, a claim in detinue requires essentially the following:

• a. That the plaintiff is the owner of the chattel.
• b. That the plaintiff has immediate right to the possession of the chattel.
• c. That the defendant is or was in actual possession of the chattel.
• d. That the defendant’s possession is adverse. -f. That the plaintiff made a proper demand on the defendant for the chattel.
• g. That the defendant without lawful excuse refused or failed to deliver up the chattel to the plaintiff.

Detention is not wrong unless possession is adverse to the owner’s right. It follows therefore that it is not a wrong to omit to deliver the goods to a plaintiff where there is no contractual duty or duty as bailee so to do and where there is no intention to keep the goods in defiance of the plaintiff. Mrs. Florence Omotayo Labode v. Dr. Godfrey Otubu & Anor. (2001) 3 S.C. 15.

To qualify as chattel in an action for detinue, the item must be some personal property. Realty can only appertain to detinue if it has been severed from the land such as coal taken from a mine; money is also not accounted as chattel as it has no intrinsic value of its own. Afribank Plc. v. Aminu Ishola Investment ltd. (2003) FWLR (Pt. 141) 1841.

To succeed in a claim for detinue, the plaintiff must establish the wrongful detention of his chattel by the defendant. This, the plaintiff must do by showing that he had demanded a return of his chattel and the defendant refused to deliver it. Udechukwu v. Okwuka (1956) 1 FSC 70.

Goods lost prior to demand by plaintiff would not be ground for detinue; where there exists no contract for delivery of the goods, the defendant does not incur liability for failure or omission to deliver the goods where there is no manifested intention to detain the goods in defiance of the plaintiff’s wish. W.A.O.S. Ltd. v. U. A.C. Ltd. (2001) FWLR (Pt. 39) 1413.

The moment demand is made and the defendant refuses to deliver up the chattel, the cause of action for detinue arises from adverse possession of the defendant. Bola Amodu & Ors. v. Jacob Ajiboye (2001) FWLR (Pt. 51) 1903. An action in detinue arises when a person claims property in goods against another who is in possession of the goods after a demand to return the goods has been made. Air Liquid (Nig.) Plc. v. Nnam (2011) 9 NWLR (Pt. 1251) 61.

A defendant who is deprived of possession of the chattel of the chattel of a plaintiff by forces beyond forces beyond his control will not be liable in detinue. Anyalaja v. Alhaji Lawal (2002) FWLR (Pt. 86) 545.

Failure to establish the ownership of the plaintiff and where the title of the goods are in dispute would warrant failure of an action in detinue. Owena Bank Plc. v. Chief Olatunji & Ors. (2002) FWLR (Pt. 124) 529.

General damages may be awarded in detinue if established. They are not presumed and are generally nominal unless the evidence establishes a case for substantial award under general damages.

The defences available to a defendant in an action for detinue are as follows:

• a. Mere possession of the goods.
• b. Insufficient title of the plaintiff compared to himself.
• c. Plea of jus tertii provided the defendant is an agent of the third party.
• d. Innocent delivery.
• e. Subsisting lien on chattel.
• f. Subsisting bailment.
• g. Inevitable accident.
• h. Enforcement of a court order.
• i. Reasonable defense of person and property.
• j. Temporary retention of the chattel in order to take steps to verify the claim for ownership of the plaintiff.

A plaintiff has three remedies in a claim for detinue and they are claim for value of the chattel and damages for detention, claim for return and damages and claim for return or its value as assessed and damages for detention. Order of specific restitution of a chattel adjudged to have been unlawfully detained is available to a plaintiff, or in the default of that, its value and also damages for its detention up to the date of judgment. Neka BBB Manufacturing Co. Ltd. v. African Continental Bank Ltd. (2004) All FWLR (Pt. 198) 1175. The chattel may also be returned on security pending the determination of the ownership of the chattel.