Detinue
is the detention of property with the intention of keeping the property in defiance of the rights of the person entitled to possession of it. In short Detinue may be defined as the illegal possession of goods. The possession becomes illegal due to the withdrawal of consent by the owner of the goods, who initially may have consented to the defendant having possession of the same goods.
is the detention of property with the intention of keeping the property in defiance of the rights of the person entitled to possession of it. In short Detinue may be defined as the illegal possession of goods. The possession becomes illegal due to the withdrawal of consent by the owner of the goods, who initially may have consented to the defendant having possession of the same goods.
Normally in detinue remedy which is provided can be under the action of the defendant which he would be needed either to return specific goods or pay its value to the plaintiff. But in the concept of remedy in detinue we shall note that the value of return a certain good however seems to be of no help if the goods are returned to plaintiff in a damaged condition.
NATURE OF DETINUE
Originally, the detinue starts to exist during the13th century whereby the mediaeval action of detinue was available only to a bailor against a bailee, where the latter failed to return bailed goods. In general the action was in essence akin to a claim for breach of contract, because it rested on a failure by the bailee to carry out his or her obligation to return goods in accordance with the terms of the bailment. By the thirteenth century, the scope of the action had extended to allow an owner to claim against a person other than the bailee who was wrongfully holding goods; and a case in which a loser of goods claimed them from a finder in detinue was firstly recorded in the fourteenth century.
In general the old praecipe writ detinue was enforced through two types of liabilities which are; Sur bailment where the defendant’s liability arose from the existence of bailment between the parties and the other liability is the Sur travor which lay against the defendant who had retained goods after demand .
ELEMENTS IN CONSTITUTING THE DETINUE TORT
As in the other torts there are some elements which are needed to be established in constituting claim of a certain tort. Hence in proving the tort of detinue the followings elements need to be constituted:-
Demand & refusal
In constituting the detinue claim the plaintiff must prove that the defendant kept the property after the plaintiff had requested for its return. There must be a demand for the goods, and a subsequent refusal on the defendant’s part. Detinue will not arise if there is no demand and refusal unless the parties have otherwise agreed; for instance if there is an express stipulation that the goods must be returned at a specific time, non-return will automatically give rise to detinue without any demand being made. It should be noted that the law does not impose a duty on the defendant to return the goods, but it is only when the plaintiff asks for it that the defendant should surrender the goods to the plaintiff. The defendant may stipulate reasonable conditions before the goods are returned by him. If these conditions are not met and he refuses to return the goods, no action for detinue will lie as it was elaborated in the case of Nambiar v Chin KimFong, whereas in this case the plaintiff’s insurance company instructed for the plaintiff’s car to be sent to the defendant’s workshop for repairs. On July 27, 1961 the defendant informed the plaintiff that the repairs were completed and the car was ready for delivery. On August 12 the plaintiff went to collect the car but the defendant refused to release the car unless the plaintiff signed a certain document which the plaintiff was under no duty to sign. At a later date, the plaintiff again demanded for the car and again the defendant refused to release it for the same reason. The court held that since the plaintiff was asked to sign what amounted to a release to his insurance company and the defendant against any bad work, and added to that the repairs did not entirely satisfy the plaintiff, the defendant’s request was unreasonable and constituted a detinue.
Immediate right to possess
A part from that reason above also in establishing the claim of detinue the he plaintiff also must have an immediate right to possess the goods. In order to succeed in detinue it is essential for the plaintiff to show that he has the right to immediate possession at the time of commencing the action, arising out of an absolute or special property. This was elaborated in case of Sajan Singh v SardaraAli, whereas in this case the plaintiff provided capital for the purchase of a lorry for the purposes of business. The permit was obtained in the defendant’s name and in fact all documents were in the defendant’s name. The plaintiff’s solicitor subsequently wrote a letter to the Road Transport Department, explaining that since it was the plaintiff who drove the lorry and he was the one who provided the capital, a permit should be issued under the plaintiff’s name. The defendant found out about the plaintiff’s plans; he went to the plaintiff’s house and drove the lorry back to his house. The plaintiff sued the defendant for detinue and asked for a declaration that the lorry belonged to him. The Privy Council held that although the transaction between the plaintiff and the defendant was illegal, nevertheless it was fully executed and carried out, and it was effective to pass the property in the lorry to the plaintiff. He held the right to immediate possession and his claim in detinue succeeded. It was further held that the plaintiff also had a clear case in trespass, although it was not pleaded. The plaintiff could have relied in possession in fact, for the claim in trespass.
CASES
1. Sajan Singh v SardaraAli,
2. Nambiar v Chin KimFong
External links
1. https://www.lectlaw.com/def/d154.htm
2. https://ir.canterbury.ac.nz/bitstream/handle/10092/3834/PhD_CHawes.pdf?sequence=1
