CONVERSION
This tort consists of wilful and wrongful interference with one entitled to possess them in such away has to deny his right to that possession or in a manner inconsistent with such right as it was defined in the case of COXTON PUBLISHING CO. V SUTHERLAND PUBLISHING CO. Normally in this tort occurs when the defendant is said to convert the goods to his or her own use by manifesting an assertion of rights or dominion over the goods which is inconsistent with the rights of the plaintiff.
NATURE OF CONVERSION
In general the liability of detinue sur trover was the ancestor of the modern action of conversion. Trover emerged late in the fifteenth century, as a branch of the action on the case. The new writ was invented through the ingenuity of some long forgotten common law pleader, to fill in the gaps left by the actions of trespass, which lay for the wrongful taking of a chattel, and detinue, which lay for its wrongful detention, and thus why by 1554 the allegations of the complaint on conversion had become more or less standardized. Whereas under the liability of sur trover the refusal to return goods came to be regarded as a positive act which constituted conversion as it was firstly elaborated in the case of Owen v Lewyn.
ELEMENTS CONSTITUTING THE CONVERSION IN TORT
As in other torts we have seen above the conversion tort is a also constituted by the following s elements as it was elaborated in the case of Kuwait Airways Corp v Iraqi Airways Co where by the essential features of this tort were described as being three which are such as follows:-
ü Presence of the denial of the Plaintiff’s right to good by the defendant
We shall note that in constituting the conversion tort the defendant’s act must amount to denial to the plaintiff’s right to the goods to which he lawful entitled. According to Lord Abinger in the holding the case of Fouldes v. Willough by he argue as follows “ a simple aspiration of a chattel, without any intention of making any further use of it , although it may be sufficient foundation for an action of trespass, is not sufficient to establish a conversion” also in the case of England v. Cowley It was elaborated by per Bramwell B. that “A landlord who disallows his tenant’s goods to be removed until the arrears of rent have been paid is not guilty of conversion to a person having a bill of sale in respect of those goods.”
ü Presence of the immediate right of possession or ownership of the good to the plaintiff
In the process of establish the conversion tort the claimant must have either possession or the right to immediate possession. For example if a landlord has rented out furnished accommodation for a fixed term and a third party commits an act of conversion in respect of some of the furniture, the landlord has no right to sue in conversion, although the tenant may. But there is a principle of jus tertii which in general abolish the former principle that a possessor of goods could recover for the full amount of their value although he was not the owner.
ü Presence of the defendants’ acts which are the legal cause of the plaintiff’s loss
In general the conversion in effect deprives the plaintiff of his or her interest in the goods, this is because conversion is essentially concerned with interference with the plaintiff’s possessory right or title, hence the acts which do not constitute such interference but merely cause damage do not amount to conversion. Hence generally the testing of the legal cause of loss of a certain property in proving this claim is very important. This was manifested in the case of Sullivan V Alimohamed Osman whereby in this case The claimant instituted proceedings against the defendant claiming that on 5th September 1957, the defendant without any authority or consent of the plaintiff, wrongfully and wilfully interfered with and exercised control over the plaintiffs motor lorry by wrongly ordering the driver to drive unlawfully to the police station. As a result, the plaintiff, incurred losses and damages in that he was deprived of the use of the vehicle in his transport business for 49 days. Hence in the holding of the case the trial judge awarded Kshs. 500 as general damages to the plaintiff as the result of the loss he entered due to the defendant’s act and rejected the claim for special damages.
ACTS OF CONVERSION
The tort of conversion may be committed in different ways or through acts. It should be noted that to constitute conversion the particular act of interference in each case must deny the plaintiff’s rights by the defendant over the goods which is inconsistent with the plaintiff’s own rights. This denial of the plaintiff’s rights is the common feature of each of the circumstances or acts which are described as follows.
ü Conversion by Taking goods or disposing them
In short this act can be referred as an unjustified removal or taking away of goods for the defendant’s own purposes, such purposes being inconsistent with the owner’s use and possession of the goods. Therefore we may say that to take goods out of the possession of another may be to convert them, such act may include the acts of to make the claimant hand over goods under duress, to steal, or seize under legal process without justification, is a conversion. This was well elaborated in the case of SSC & B: Lintas New Zealand v Murphy, whereby in this case the defendants left their employment with an advertising agency, taking with them office files, client contact reports, library records and material used in the preparation of advertisements. Their object was to further their own commercial interests by setting up a rival business, in the holding such act was held to be the act of conversion. But we shall also know that an act of merely removal of goods from one place to another is not conversion, but a deprivation of the goods which is more than a mere moving of the goods, which in reality will deprives the claimant of the use of the goods for however short a time, will generally constitute conversion.
ü Conversion by Destroying or altering goods
In general as lawyer we shall understand that to destroy goods is to convert them, if only proved that the destruction was done intentionally. In claiming the conversion in the certain act which had altering a certain goods the quantum of harm constituting destruction for this purpose is clearly a question of degree. Because a mere damage is not a conversion for example to bottle another’s wine in order to preserve it is not conversion. But If goods are used for a purpose which eliminates their utility as goods in their original form for instance making a fur coat from animal skins is conversion.
Conversion by Using
In general the act of using goods as your own is ordinarily considered as an act to convert them. This was elaborated in the case of Lancashire and Yorkshire Railway v MacNicoll whereas in this case it was thus conversion for a person, to whom carbolic acid drums were delivered by mistake, to deal with them as his own by pouring the contents into his tank. However, we shall note that a mere misuse by a bailee unaccompanied by any denial of title is not a conversion although it may constitute some other tort as it was provided in the case of Donald v Suckling.
Conversion by Receiving
The act of receiving goods belonging to another may be conversion provided the act amounts to an assertion of dominion over the goods which is inconsistent with the owner’s rights. Under this reason, it is possible for innocent purchasers of goods to be liable in conversion unless they are protected by any of the exceptions to the nemo dat rules. This matter was well elaborated in the case of Elwin v O’Regan whereas in this case a finance company transferred possession of a car which it owned to a customer. The customer then purported to sell it to an innocent purchaser, who sold it; it was then on sold twice, the second sale being to the plaintiff. A year later, it was taken from his possession by the defendant agent of a finance company. The plaintiff claimed that the defendant had converted the car, a claim which could succeed only if he had received good title to the car under his purchase. So due to such fact the plaintiff claim for conversion was unsuccessful one because there was no exception to the rule that one who lacks title cannot confer title for the plaintiff. However if the defendant receives goods in good faith for the purpose of storage or transport, he does not commit conversion because there is no assertion of a proprietary interest in the goods.
Conversion by Refusal to surrender goods on demand
A refusal to surrender goods upon reasonable and lawful demand is a conversion. In particular this covers the situation where the possession of the claimant is ` originally lawful. Factors which may be relevant in constituting this act it may be include include: The time of the demand, the expense and the inconvenience of immediate compliance, the knowledge on the part of the defendant of the claimants title and of his identity and whether the defendant has adequately conveyed to the claimant the grounds for his temporary refusal. But we shall note that in order to prevent the defendant from setting up facts which would otherwise have justified a refusal, an estoppel may be issued. This was elaborated in the case of Ngambo Estate and Saw Mills Ltd V Smith Saw Mills (Tanganyika Ltd) whereby The appellant, Ngambo Estate, filed a suit against the respondents for general damages for obstructing public right way, and for trespass and conversion of timber. They claimed that between January and November 1950, the respondents trespassed upon their estates and there in cut and fell 21 soft trees (mvule) and by obstructing the road therein prevented them from transporting the trees which rendered useless after rotting. On the conversion issue, the defendant through their agents between 28th October and 15th November, wrongfully removed the trees on claim of having purchased but on oral demand they agreed to return, but they never returned. The Court of Appeal found for the claimant in the retrial of conversion of timber, but dismissed the claims of obstructions.
Inconclusion, although these tort seems to be very strict to the defendant as we have seen that when its act have been committed it’s so hard for the defendant to escape the punishment of such claims, But there are some defenses on the claim of these claims for conversion and all other claims for the trespass of goods and such defenses includes the followings:-
ü Statutory authority
When it is proved that the certain interference to goods had been done under the statutory authority there’s no conversion claims to be established to such act. For instance in criminal procedures the police commit no trespass to goods when they exercise their lawful powers of search and seizure as they have a defence of statutory authority of section 41 of the Criminal Procedure Act.
ü Necessity
In general this defence provides that it is lawful to interfere with or damage goods in order to avert immediate danger to people or property, as long as the interference is reasonable in the circumstances. The degree of interference or damage must however be balanced against the threatened harm. This fact was well elaborated in the case of Cresswell V Sirl where the defendant was responsible for shooting the claimants dog, which had been worrying the defendants pregnant sheep. Although the dog was not attacking the sheep at the time, it was held that shooting it was justified by the threatened harm, and therefore lawful.
ü Volenti or consent
In general this defence raised when it is proved that the certain consent to trespass may be implied from the claimants conduct. This was manifested in the case of Arhtur V Anker (1996), a company which clamped a car parked on private land was held to have a defence of consent. Notices displayed prominently had warned that anyone parking without authorization would be clamped, and by parking there, the claimant was deemed to have accepted that risk. The court of appeal said that in order to be protected by this defence, the defendant had to prove that the claimant was aware of the consequences of parking her car on the land concerned, and this meant establishing that the claimant had seen and understood the warning sign. This did not mean that the claimant necessarily had to read all the details, seeing the notice and realizing what it was about could be enough, even if the claimant had not bothered to read it properly and find out exactly what would happen to cars parked on that land.
ü Jus tertii
This defence it normally refer 'the right of a third party’ whereby it is normally a defence available in property law, and it means that a plaintiff cannot bring an action against a defendant if there is a third-party which has better rights to the property then him. For example when there’s a reversionary interest provided to the plaintiff.
REFERENCES
REFERENCES
1. Ngambo Estate and Saw Mills Ltd V Smith Saw Mills (Tanganyika Ltd)
2. COXTON PUBLISHING CO. V SUTHERLAND PUBLISHING CO
3. Sullivan V Alimohamed Osman
EXTERNAL LINKS
1. https://www.merriam-webster.com/legal/jus%20tertii
2. https://www.stimmel-law.com/en/articles/conversion-basic-tort
2. COXTON PUBLISHING CO. V SUTHERLAND PUBLISHING CO
3. Sullivan V Alimohamed Osman
EXTERNAL LINKS
1. https://www.merriam-webster.com/legal/jus%20tertii
