Detinue is the tort of wrongful detention of a chattel. It arises when a person who is entitled to the immediate possession of goods demands their return and the person in possession refuses to deliver them without lawful excuse. The wrong is not the original taking of the goods (which may have been lawful) but the continued retention after a proper demand. Nigerian courts have consistently defined the tort in these terms. In Julius Berger Nigeria Plc v. Omogui (2001) 15 NWLR (Pt. 736) 401, the Supreme Court stated that detinue is a wrongful retention of the possession of goods and that the cause of action arises upon the detention of the chattel after demand for its return by the person entitled to immediate possession.
To succeed, a plaintiff must prove: (a) ownership of or an immediate right to possession of the chattel; (b) that the defendant is or was in actual possession; (c) that a proper demand for return was made; and (d) that the defendant unjustifiably refused to deliver up the chattel. These ingredients were restated by the Court of Appeal in Nze Edwin Abazie v. Reginald Nwachukwu & Anor (2012) LPELR-5334(CA). A conditional refusal that is reasonable does not necessarily amount to wrongful detention; the refusal must demonstrate an intention to keep the goods in defiance of the plaintiff’s right.
The cause of action accrues on the date of the wrongful refusal and is a continuing one until the goods are delivered or judgment is given. Limitation periods therefore run from the date of demand and refusal. Important earlier authorities include Odumosu v. African Continental Bank Ltd (1976) 11 SC 55, where the Supreme Court clarified the nature of the claim and the measure of damages, and Labode v. Otubu (2001) 7 NWLR (Pt. 712) 256, which emphasised that detinue protects the right to possession irrespective of how the defendant originally obtained the goods.
Remedies in detinue are primarily for the return of the specific chattel or, if return is impossible or not ordered, its value assessed at the date of judgment, together with damages for the period of detention. Damages may include the market rate for hire of the goods during the detention or other consequential loss proved by the plaintiff. Courts will not award damages for detinue where the dispute is purely contractual and does not involve a specific chattel. Equally, money in an abstract form (such as a bank balance) is not a chattel capable of founding an action in detinue.
Detinue remains a distinct tort in Nigerian law, unlike in some other jurisdictions where it has been absorbed into conversion by certain laws. It continues to provide an effective remedy for the recovery of specific goods wrongfully withheld, whether certificates of occupancy, vehicles, generators, examination certificates or other chattels, provided the essential elements of demand and unjustified refusal are established.
By Samuel C. Olenyi
Senior Associate
A.O Ayeni & Associates