Possession, and a Comparative Analysis of Conversion and Detinue
Possession, and a Comparative Analysis of Conversion and Detinue
Ekeminijah Ifon
University Of Uyo
Possession is a crucial concept in the law of torts. It refers to the physical control or custody of a chattel (a movable item). It involves the intention to possess, exclude others, and exercise control over the item. It is a very important aspect of torts.
Possession is essential to establish conversion, which involves intentional dealing with a chattel in a way that denies the owner's rights. It is also necessary for detinue, which involves refusing to return a chattel to its rightful owner. It is relevant in trespass to chattels, which involves intentional interference with a chattel in someone else's possession. Understanding possession is crucial in resolving disputes related to conversion, detinue, and trespass to chattels.
Conversion can occur even if the defendant doesn't have physical possession of the chattel, while detinue requires the defendant to have possession. This means that possession is important in conversion and detinue.
UNDERSTANDING POSSESSION
Definition Of Possession
In law, possession is the control a person intentionally exercises toward a thing. Like ownership, the possession of anything is commonly regulated under the property law of a jurisdiction.
In South Africa, possession is defined in section 4 of the Controlled Substances Act 1984 (SA) as having 'control over the disposition of the substance or thing' as well as 'having joint possession of the substance or thing'.
Cornell Law School defines it as “the ownership , control , or occupancy of any object, asset , or property , by a person”.
In English law, possession is treated not merely as a physical condition protected by ownership, but also as a legal right in itself. The presumption of law is that the person who has de facto possession also has the property, and accordingly such possession is protected, whatever its origin, against all who cannot prove a superior title.
Britannica states that possession, in law, the acquisition of either a considerable degree of physical control over a physical thing, such as land or chattel, or the legal right to control intangible property, such as a credit—with the definite intention of ownership.
In Nigeria, possession is the physical control of land or landed property. It is the physical control or custody of a chattel( property). It is deemed to be ownership, occupancy, or control of a property, an asset, or an object. This involves real physical governance and/or exclusive use by an individual person or entity.
Types of Possession
The main types of possession are actual, constructive, and joint possession. Each type of possession involves different levels and forms of control, knowledge, and use of an asset.
Actual Possession
It is actual possession when the person that has possessory right on the property is in physical possession of the property or he has physical control of the said property. This is also known as de facto possession. It is what most of us think of as possession—that is, “having physical custody or control of an object.”
Constructive Possession
This is possible where the person that has a possessory right over property is exercising such a right through another person. Here the owner is not in physical control of the said person and he does not have physical dominion over the property. However, he may be exercising such a possessory right through another person or agent.
It is also called possession in law, and exists when a person has knowledge of an object plus the ability to control the object, even when the person has no physical contact with it. Constructive possession is often used in criminal cases.
Joint Possession
When two or more people have actual or constructive possession of an asset at the same time
Elements of possession
They include: physical control, intention to possess, knowledge of possession, and exclusive control.
Physical control refers to the actual presence and use of a material object or item. Intention to possess is the intent or desire to have something as well as maintain control over it. Knowledge of possession means that one must be aware of their ownership or possession of it. Finally, exclusive control refers to the right to exclude others from having any right to use the object or item.
The most important elements are physical control and knowledge. Both elements must exist before a person can be found guilty.
CONVERSION
Definition of conversion
Osborn's Law Dictionary defines Conversion as “the tort which is committed by a person who deals with chattels not belonging to to him in a manner which is inconsistent with the rights of the lawful owner whereby he is deprived of the use and possession of them”.
Cornell Law School defines it as “an intentional tort which occurs when a party takes the chattel property of another with the intent to deprive them of it”.
For the purposes of conversion, “intent” merely means the objective to possess the property or exert property rights over it. As a result, a party is liable for conversion regardless of their knowledge of property’s ownership status. For example, a person who picks up a necklace off the ground with the intent to resell it because they erroneously believed it was abandoned still converted that necklace.
Wikipedia defines conversion as an intentional tort consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". This is the deprivation of another’s right to use or possess personal property.
Conversion is often defined as other interference of a person’s right to property without the owner’s consent and without lawful justification. Stevenson v. Economy Bank of Ambridge, 413 Pa. 442 (Pa. 1964). A conversion occurs when a person without authority or permission intentionally takes the personal property of another or deprives another of possession of personal property. It is a tort which allows the injured party to seek legal relief.
Conversion is considered the civil side of larceny, namely the improper taking of non real property from another without due authority. It is the using of a thing without the license of the owner or a wrongful sale of it is a conversion. Clark v. Whitaker, 19 Conn. 319 (Conn. 1848).
A legal action predicated on the tort of conversion may be maintained by persons having the immediate right to possession of the article converted. Owens v. Andrews Bank & Trust Co., 265 S.C. 490 (S.C. 1975).
A conversion may be committed by unreasonably withholding possession from one who has the right to it. In torts, "conversion" refers to a type of intentional tort that involves the wrongful interference with someone's possessory rights in a chattel (personal property).
Conversion is the intentional and unauthorized taking or retention of someone's personal property, resulting in the deprivation of the owner's possession and use of the property. It is an important tort that protects individuals' rights to their personal property and provides remedies for those who have been wronged.
Street (Brazier & Murphy) defines Conversion as “an intentional dealing with a chattel which is seriously inconsistent with the possession or right of immediate possession of another person”.
Salmond and Heuston on the Law of Torts defines it as “an act or complex series of acts of willful interference, without lawful justification, with any chattel in a manner inconsistent with the rights of another, whereby the other is deprived of the use and possession of it”.
It is simply the intentional dealing with a chattel in a way that denies the owner's rights.
Elements of conversion:
The elements of conversion are:
the plaintiff’s ownership or right to possession of the property.
It has to show that the plaintiff I'd the owner or is in possession of the property. The possessor must have exclusive control over the property. That is, he must have the capacity to prevent others from using the property/ chattel. In Eze v. Obiefuna, The court held that possession is not only ascribed to those in lawful possession, such as tenant but those who have immediate physical possession of the chattel.
The defendant’s conversion by wrongful act inconsistent with the property rights of the plaintiff.
As the 4th Circuit Court of the United States said, “Conversion involves an act of control or dominion over the property that seriously interferes with the owner’s rights,” United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986).
Damages
it is not necessary for your property to be damaged in the process; the simple act of taking the property without permission and depriving you of your right to it is enough. Another 4th Circuit decision, In re Stanley, states plainly, “For conversion to occur, it is not necessary that the property be damaged, but merely that the owner suffer a serious deprivation of the incidents of ownership,” (In re Stanley, 66 F.3d 664, 668 (4th Cir. 1995)).
This means that the intentional act, denial of owner's rights, and chattel must be in possession of defendant.
Examples of conversion includes: selling, pledging, or destroying a chattel without owner's consent
DETINUE
Definition of Detinue
Black's Law Dictionary defines Detinue as “a legal action to recover personal property that has been wrongfully taken”. It's a type of tort law action. It is based upon a wrongful detention of the plaintiff's chattel, evidenced by the refusal of such defendant or his agent to delive4 it up on demand. (Imoh Udofa's Law of torts)
Detinue is a legal action aimed at recovering personal property that has been wrongfully detained by another party. It arises when an individual, who has a rightful claim to possession, demands the return of their property, but the current possessor refuses to comply. The action can lead to the specific return of the property or compensation for its value if return is not feasible. In some jurisdictions, such as the UK, detinue has been merged with conversion laws, while it remains a distinct tort in others like Nigeria.
Osborn's Law Dictionary defines Detinue as “ the action which is the remedy where a person claims the specific return of goods wrongfully detained from him or their value with or without claim for hire or for damages for detention”.
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant, and second, that the defendant refused to return the chattel once demanded by the claimant.
It is simply the refusal to return a chattel to its rightful owner
Elements of Detinue
Unlawful Detention
The tort of detinue is the wrongful detention of the chattel of another person, the immediate possession of which the person entitled. The gist of an action in detinue is the wrongful or unlawful Detention or diversion of the plaintiff's goods/chattels. An action in detinue is a claim for the specific return of a chattel wrongfully retained, or for payment of its current market value and any consequential damages.chattel must be in possession of defendant, defendant refuses to return chattel, and plaintiff demands return.
Right to immediate possession
The plaintiff must also prove that he has title and the right to immediate possession of the property being detained by the defendant. In other words, the plaintiff must have title that is ownership or right to immediate possession of the chattel.
Failure To Return Chattel
The defendant who is in actual possession of the chattel must have failed, and or refused to deliver the chattel to the plaintiff after the plaintiff has made a proper demand for the return of the chattel, without lawful excuse. There must have been a demand by the plaintiff for the return of the chattel and a refusal or a failure to return them.
Examples of detinue: refusing to return a borrowed item, withholding a chattel from its rightful owner
Comparative Analysis of Conversion and Detinue
Similarities between Conversion and Detinue
Thses two torts involve interference with owner's rights, chattel must be in possession of defendant.
Other similarities include:
Personal property involvement: conversion and detinue typically involve personal property (movable goods) of the plaintiff, as opposed to real property (land or buildings).
Interference with property rights: Both conversion and detinue involve unlawful interference of the defendant with the plaintiff's right to possession or ownership of their property.
Remedies Available: in Conversion and detinue, the plaintiff may seek remedies such as damages, restitution, or recovery of the property. Unity Bank Plc v. Ojo (2012) 17 NWLR (Pt. 1329) 331
Intention: In conversion and detinue, it is important to prove the element of intention of the defendant to interfere with the plaintiff's property rights. Ashby v. Tolhurst (1937) 2 KB 242
Differences between Conversion and Detinue
Conversion and detinue are both legal terms related to the wrongful interference with someone else's property, but they have distinct differences:
Conversion:
It involves the wrongful exercise of control over another person's property, leading to a denial of their rights.
It focuses on the act of intentionally interfering with the property, such as selling, destroying, or withholding it from the owner.
The plaintiff can sue for the full value of the property, not just for the loss of use or damage.
Conversion is any interference, possession or disposition of the property of another person, as if it is one's own without legal justification. Ihenacho v Uzochukwu (1997 ) 2 NWLR pt 487. p. 257 SC.
It is dealing with a chattel which belongs to another person in a manner that is is inconsistent with the rights of the person Conversion includes wrongful taking, wrongful detention, and or wrongful disposition of the property of another person.
In conversion, the conduct of the defendant must deprive the owners of the possession of the chattel, or amount to a denial or dispute of the title of the owner.
Conversion is known as stealing or theft in criminal law .Therefore, mere touching or moving of a chattel and so forth, only amount to trespass. This principle was applied in the case of Fouldes v Willoughby (1841) 151 ER 1153.
To maintain an action in conversion, the plaintiff need not be in actual possession of the chattel at the time of the interference. It is enough if the plaintiff has right to immediate possession of the chattel, that is, the right to demand for immediate possession of the chattel. Ashby v Tolhurst (1937) 2 KB 242
Detinue
It refers to the wrongful withholding of another person's property.
It centers on the act of refusing to return the property to its rightful owner.
The plaintiff can sue for the return of the specific property or its value if the property cannot be returned.
The tort of detinue is the wrongful detention of the chattel of another person, the immediate possession of which the person entitled.
Detinue is a claim for the specific return, delivery, or surrender of a chattel to the plaintiff who is entitled to it.
Detinue is the wrongful detention or retention of a chattel whereby the person entitled to it is denied the possession or use of it.
Generally, to successfully sue in detinue, a plaintiff must have possession before the detention, or have right to immediate possession of the chattel.
Conversion involves intentional dealing with chattel while Detinue involves refusal to return chattel. Conversion focuses on the act of control, while detinue focuses on the act of withholding.
CONCLUSION
Possession is a fundamental concept in law, and conversion and detinue are important torts related to possession. As a result, understanding the elements and distinctions between conversion and detinue is crucial for legal analysis and application.
The conduct of the defendant must deprive the owners of the possession of the chattel, or amount to a denial or dispute of the title of the owner in conversion. It is known as stealing or theft in criminal law. Detinue is the proper remedy where the plaintiff wants a return of the specific goods in question, and not merely an assessed market value.
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