TRESPASS TO GOODS
According to Prof. Salmond, Trespass to goods consists in committing without lawful justification any act of direct physical interference with a chattel in the possession of another person” .In general this tort is committed essentially by wrongful interference with the possessory title of the plaintiff in respect of goods actually in possession at the time of interference. We shall note that this tort is actionable per se that is, without a proof of any damage.
THE NATURE OF TRESSPASS TO GOODS
This kind of tort originated from the old action of trespass to goods, called de bonis asportatis, by which it originally required a taking away or removal of goods from the plaintiff’s possession, or a complete destruction of the goods. Although in nowadays this is no longer the case, because this tort may be committed by acts which fall short of complete removal or destruction, and that’s why any unjustified interference with the plaintiff’s possession may constitute trespass to goods in nowadays.
ELEMENTS IN CONSTITUTING A TRESPASS TO GOODS TORT
As in other torts there are some elements that are there to promote the succession on establishing the claim on the trespass of goods tort. Such elements which are needed in proving the constitute of the trespass to goods claims are as follows:-
Presence of Direct Interference
Direct physical interference without a lawful justification is a trespass. The wrong may be committed intentionally, negligently or even by on a honestly mistake. For instance a person driving away a car , believing to be his own he would be liable to the person in the possession even though the wrong seem to be committed under a honestly mistake. This was well elaborated in the case of Kirk v. Gregory whereas in this case on A’s death his sister in law removed some jewellery from the room where his dead body was lying, and put it to another room under a reasonable but a mistaken belief that the same was necessary for its safety. But later on the jewellery was stolen from the place where it was now kept. In an action by the executors of A, the A’s sister in law was held liable for trespass to the jewellery.
A certain act established by a defendant shall be a wrong against possession
The term Possession connotes the power (factum) of exercising physical control and the intention to exercise such powers on his own, according to Lord Esher in the case of Johnson V Diprose he argued that…’the plaintiff in an action of trespass shall have the present possession of goods, either actual or constructive or a legal right to the immediate possession…’ Furthermore trespass is considered to be a wrong against possession rather than ownership. This is because a person in possession can sue even without any proof of his tittle to the goods. This is due to the fact that a trespasser in this tort cannot take the defence of jus terti which 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. This was well elaborated in the case of Armory v. Delamirie whereby in this case the Chimneysweeper’s boy, who after finding a jewel and give it to a jeweller in order for it to be valued, was a held to be entitled to recover its full value from the jeweller though he was not the owner of that jewel. But the exception of this is when there’s a reversionary interest provided to the plaintiff. Reversionary interest simply means that the grantor of the trust has an interest in getting back a transferred property after some time or upon a certain condition.
Absence of a Lawful justification to certain act done by defendant
Generally in the process of proving the trespass to goods claims, when the certain interference proved to be without of any lawful justification then an action for trespass lies but there some circumstances where by there are some justification when the defendant has seized the plaintiff’s goods or cattle and under these situation the claim to trespass cannot lie. But there are also circumstances whereby the good is interfered under a lawful justification and led to damage of a certain goods under the exercise of a right of a private defence also under such act the claims for trespass cannot lie. This fact was elaborated in the case of Cresswell v. Sirk whereby in this case, 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.
DEFENCES TO A TORT OF TRESSPASS TO GOODS
Inevitable Accident
An inevitable accident is one which could not have been possibly been avoided by the exercise of due care and caution. According to Charles worth “There is no inevitable accident unless the defendant can prove that something happened over which he had no control and the effect of which could not have been avoided by the exercise of care and skil’’. This was also elaborated in the case of National Coal Board v. Evans whereas in this case the defendant which were the country council employed the a certain independent contractor to make excavation on their land , Beneath the land were laid some electric cables by the plaintiff’s predecessor in title, of which the defendants had no knowledge due to such fact the contractors were damaged during the excavation. In the holding the defendant was not liable on the basis that the damaged have caused without the any fault on the part of the defendant.
Act in relation to Private agreements.
This kind of defence occurs especially were there’s agreement or conditions established between two parties to a certain contract. For instance where the goods were assigned as security for loan upon trust to permit the assignor to remain in possession until the repayment, hence under such instance the claim for a tort of trespass to goods may be crushed.
Act done in respect to statutory authority
In general situation when the commission of what would otherwise be a tort, is authorized by a statute the injured person is remediless. For instance in the auction on the peoples assets that are done by the government cannot be raised as the claim for a trespass of goods by any of the person.
Conclusion
In conclusion, we shall note that in trespass to goods tort like other forms of trespass, it is also actionable per se, which generally means, without proof of actual damage, also like trespass to land, trespass to goods also it tries to protect a possession rather than ownership and that’s why the Plaintiff in an action for trespass to goods must have had actual possession of it at the time of the interference by the defendant.
REFERENCES
CREDIT:Ms.L Florida,Lecturer notes at moshi cooperative universty
EXTERNAL LINKS
1. https://en.wikipedia.org/wiki/Trespass_in_English_law
2. https://lawtimesjournal.in/trespass-law-of-tort/
3. https://www.lawyersnjurists.com/article/discuss-the-law-relating-to-trespass-to-goods/
EXTERNAL LINKS
1. https://en.wikipedia.org/wiki/Trespass_in_English_law
2. https://lawtimesjournal.in/trespass-law-of-tort/
3. https://www.lawyersnjurists.com/article/discuss-the-law-relating-to-trespass-to-goods/
