TRESPASS TO CHATTEL

Trespass to chattel is the direct and wrongful interference with a chattel in the possession of
another. Such interference could either be intentional or negligent. To establish trespass to
chattel, the Plaintiff must prove that the trespass was either intentional or negligent. See Fowler
v Lanning [1959] 1 Q.B. 426. An act is intentional if or when it is done with full advertence to
its consequences and a desire to produce them. Intention is presumed from the conduct or action
of the tortfeasor. In law, a party is considered to intend that which is the natural or probable
consequence of that which he does. On the other hand, negligence is when a tortfeasor is careless
or indifferent to the consequences of his action.

In an action for trespass to chattel, it is vital that for the Plaintiff to succeed, he must establish
that he was in possession at the time of the unlawful interference by the Defendant for it is
possession that confers on the Plaintiff the legal right which the tort of trespass seeks to protect.
See Ward v Macauley [1791] 100 ER 1135.

In Davies v Lagos City Council [1973] 10 CCHCJ 151, the Defendant had granted the Plaintiff
a carriage licence to operate a taxi cab in the Lagos area. The Plaintiff was well aware that the
licence was for his exclusive use and not transferable but he nonetheless caused it to be
transferred to a third party, who operated a taxi cab with the licence. The Defendant on learning
of this purported to revoke the licence and subsequently seized and detained the Plaintiff’s taxi.
In an action for trespass by the Plaintiff the court held that the Defendant was entitled to revoke
the licence for non-compliance with the terms or conditions or regulations governing the use of
carriage licence, but that it was not entitled to seize the vehicle or otherwise take possession of it.
The Defendant was held liable for trespass.

The tort of trespass to chattel consists of three torts thus:

a. Trespass to the chattel itself

b. Conversion and
c. Detinue

Trespass to chattels is actionable per se, that is, without proof of actual damage because it is in
itself a breach of a legal right. See Penfolds Wines Pty. Ltd. v Elliot [1946] 74 CLR 204. It
therefore means that the mere touching or wrongful moving of a chattel without damage being
caused is actionable. See Kirk v Gregory [1876] 1 Ex D. 55. For example, where A, contrary to
instructions, touches an animal in a zoo or a work of art in museum; where X wrongfully takes
Y’s letter and shows it to Z. See Thurston v Charles [1905] 21 TLR 659.

It is pertinent to state that since trespass is actionable per se, liability will always arise for a
Defendant in the event of breach of a legal right even if committed by proxy. In other words, any
unlawful interference with the legal right of possession of another would amount to trespass
provided that is not in the execution or performance of a court order. In Ajao v Ashiru [1973] 1
All NLR (Pt. II) 51, the Plaintiff’s peppermill was seized by the Defendant and the Defence of
the Defendant to the claim of the Plaintiff was that the peppermill was seized by the Police. The
Supreme Court held the Defendant liable on the ground that the Police acted at his instance in
seizing the peppermill of the Plaintiff. The rationale behind the court’s decision is to discourage
using ministerial agents as partisan agents of wrong doers in the pursuit of a private vendetta.

The tort of trespass to chattel itself could be committed without the tort of conversion and
detinue and there could be the tort of trespass to chattel and conversion without the tort of
detinue. There can be conversion or detinue without the tort of trespass to the chattel. In other
words, the three torts could be committed separately and independently or in a sequence by the
Defendant.

The law of trespass to chattel seeks to protect the interest of the Plaintiff vis-a-vis (a) the
Plaintiff’s right in retaining possession of the chattel, (b) the interest of the Plaintiff in the
physical condition of the chattel and (c) the interest of the Plaintiff in protecting the chattel
against interference or intermeddling. See Forson v Keons [1975] GLR 479.

N/B It should be noted that the tort of trespass to chattel seeks to protect possession and not
ownership of property. It therefore means that a Defendant could be liable in trespass to a third
party who is in either lawful or unlawful possession of the chattel of another even though the
third party is not the owner of the chattel. In other words, a Defendant can be liable for trespass
to a third party who is in unlawful or wrongful possession of the chattel of another because the
law and principle of trespass to chattel seeks to protect possession against interference.

The purport of this principle by necessary implication is as follows:

a. The owner of a chattel will be liable in trespass if he interferes with it at a time when it is
in the lawful possession of another, for example a hirer. See Keenan Bros. Ltd. v C.I.E.
[1962] 97 ILTR 54. Therefore and for instance, a finance company which lets out goods
on hire purchase will be liable if it wrongfully seizes the goods whilst they are in
possession of the hirer.
b. Where a person acquires possession of goods wrongfully he can maintain an action in
trespass against any person who interferes with the goods except the owner or a person
acting under the authority of the owner. See Woadson v Nawton [1727] 93 ER 842. For
instance, if X wrongfully takes Y’s motorcycle and while it is in the possession of X, Z
makes away with it, X can sue Z in trespass since had had actual albeit wrongful
possession at the time of the interference by Z, and Z cannot plead jus tertii (that X is not
the owner) as a defence. However, X will not succeed against Z if Z was acting under the
authority of Y when Z made away with the motorcycle.
 c. The owner of a chattel cannot maintain an action trespass if he did not have actual
possession of it at the time of the interference. See Wilson v Baker [1833] 110 ER 587.
For instance, in scenario (b) above, Y cannot sue Z for trespass since Y was not in actual
possession of the motorcycle when Z took it away from X buy Y can sue X in respect of
the original trespass.

Forms of Trespass to Chattel

1. Destruction. See Sheldrick v Abery [1793] 170 ER 278- killing an animal; Heyden v
Smith [1610] 123 ER 970- cutting and taking away trees.
2. Damage. See Fouldes v Willoughby [1841] 151 ER 1153; 8 M & W 540- scratching the
panel of a coach; Slater v Swann [1730] 93 ER 906- beating an animal
3. Using goods without consent of the possessor. See Penfolds Wines Pty. Ltd. v Elliot
[1946] 74 CLR 204- riding a car, riding a horse
4. Wrongfully moving goods from one location to another. See Kirk v Gregory [1876] 34
LT 488; GWK v Dunlop Rubber Co. [1926] 42 TLR 376- removing a tyre from a car
on show and replacing it with another.

Intention or Negligence in Conversion

Generally, all torts including trespass to chattel could either be committed intentionally or
negligently. In other words, for a Plaintiff to succeed in an action for trespass to chattel in any of
the three forms, it must be established that the Defendant’s act was either intentional or
negligent. See Fowler v Lanning [1959] 2 KB 861. The corollary is that where interference is
accidental, there is no liability. In National Coal Board v Evans [1951] 2 KB 861, a contractor
in the course of carrying out excavations on land in possession of a third party, struck and
damaged the Plaintiff’s underground cable and was held not liable because he did not know of
the presence of the cable and there was no fault on his part. However, a distinction must be made
between accidental trespass and a trespass by mistake. The difference between the two is that in
the former, the tortious act and its attendant consequences are unintentional and undesired,
respectively, while in the latter, the tortious act itself is intentional but committed under a
mistaken belief of a particular state of affairs. In other words, if the interference with the chattel
is intentional, it is no defence that the Defendant would not have committed the trespass if he had
not been mistaken as to his right to interfere or that he did not realize that he was committing a
trespass. For example, if A takes and uses B’s pencil thinking it was his own, he is liable in
trespass since his act in using the pencil is intentional and the fact that he did not realize that it
was B’s pencil or that he was committing a trespass in immaterial.

In respect of the tort of trespass to chattel flowing from negligence, it is not enough or sufficient
for the Plaintiff to merely prove that the Defendant made or had contact with his chattel and
caused damage. He must go the further step to prove or establish that the contact and the
resultant damage was a result of negligence (lack of exercise of care or caution) on the part of the
Defendant or of someone for whom the Defendant is vicariously liable or stands in a vicarious
position. In Gayler and Pope v. Davies and Son [1924] 2 KB 75, the Plaintiff, the owner of a
shop adjoining a road had parked his car on the side of the road. Thereafter, the Defendant while
driving past had accidentally hit his vehicle and in the process also damaged some goods in the
shop. In an action filed by the Plaintiff for trespass against the Defendants, the Defendants were
held not liable for the Plaintiff could not establish that they were negligent.

However and originally, trespass to chattels was a strict liability tort requiring no fault, that is,
intention or negligence on the part of the Defendant. It meant that the Plaintiff need not prove
that the Defendant’s act was committed intentionally or negligently for liability to arise.

Remedies for Trespass

a. Award of damages (general or special). Where permanent damage or destruction

constitutes trespass to chattel, the award of damages will be the monetary value of the
chattel.
b. Injunction against further acts of trespass. The court may make an order of perpetual
injunction against the Defendant or his privies, agents and servants and person generally
under his control.

Conversion

It is the intentional dealing with or exercise of control over a chattel which interferes with the
Plaintiff’s possession or right of possession of the chattel and it is consummated when the
tortfeasor exercises temporary or permanent dominion over the chattel void of consent of the
owner. In Agbahowe v Osayiobasa [1966] NMLR 360, the Defendant was held liable for
trespass and conversion for driving out the Plaintiff’s car without his permission or consent. See
Caxton Publishing Co. Ltd. Sutherland Publishing Co. Ltd. [1939] A. C. 178. The corollary
is that there can be no conversion without using the chattel either for the benefit of the Defendant
or the benefit of another. Therefore, where the Defendant finds the chattel of the Plaintiff and
keeps in his possession it without using it, there is no conversion, but he will be liable in
conversion if he uses or begins to use it. See Mulgrave v Ogden [1591] 78 ER 475

The tort of conversion consists of dealing with goods in a manner inconsistent with the rights of
the true owner, denying the rights of the true owner to the goods, or asserting a right which is
inconsistent with the owner’s right. It is actionable by the person entitled to possession of the
goods. To succeed in a claim for conversion, the Plaintiff must prove that he had possession of
the goods or the right to immediate possession of them at the time of the wrongful act. It is
necessary to establish the element that the Defendant had the intention to deal with the goods in
such a way as to exercise dominion over them.

Even where a Defendant is in lawful possession of the Plaintiff’s chattel, for instance as a bailee
or hirer, he can still be liable for conversion where he uses the chattel contrary to an express term
in the contract or where he uses it for a purpose materially contrary to the essence of a bailment
contract as to constitute a breach.

Some acts that may amount to conversion are as follows:

a. Contradicting the title of the true owner

b. Receiving goods which have been obtained by fraud and selling them in good faith to
someone else.
c. Misdelivering goods
d. Selling goods without the Plaintiff’s permission
e. Destruction of goods belonging to the Plaintiff, or intentionally risking the confiscation
or destruction of goods
f. Detaining goods which belong to the Plaintiff without permission

Conversion is similar to trespass in the sense that it seeks to protect possession of chattels or
goods and there are situations that could give rise to both trespass to chattel and conversion
concurrently.

The difference between trespass to chattel and conversion of chattel are as follows:

1. In conversion, the interference must be intentional but in trespass it may be intentional or

negligent.
2. In trespass it is necessary for the Plaintiff to be in actual possession at the time the
interference occurred before a claim can be made and grounded but in conversion, it is
not necessary for the Plaintiff to be in actual possession at the time of the interference
rather it is sufficient if he had an immediate right to possession.
3. Merely moving a chattel from one place to another is sufficient to consummate the tort of
trespass but it is not conversion to merely move a chattel from one place to another void
of the requisite intention to take possession of it or dispute the owner’s title.

Conversion & Intention

A Defendant will be liable in conversion if his conduct in relation to the goods of the Plaintiff is
intentional. The corollary is that an interference flowing from a careless conduct is not actionable
in conversion. Careless conduct here means negligence or lack of exercise of care. In Ashby v
Tolhurst, [1937] 2KB 242 a car park attendant who negligently allowed a thief to drive away
the Plaintiff’s car was not held liable in conversion. Also in Joule Ltd. v Poole [1924] 24 SR
(NSW) 387, a transporter who carelessly lost his client’s goods was not held liable in
conversion.

The elements of conversion are:

1. There must be an intention by the Defendant to exercise permanent or temporal dominion
over the chattel. To amount to conversion, the Defendant must deal with the Plaintiff’s
goods as to exercise dominion over them either on his own behalf or on behalf of someone
other than the Plaintiff. If the intention is present and actually manifested with an overt
act(s) of the Defendant amounting to exercising acts of possession over and above the
Plaintiff’s goods, he will be liable in conversion. By the application of the principle that a
man is presumed to intend the natural or probable consequences of his action, if the
Defendant deals with the Plaintiff’s chattel in circumstances in which there is a risk of loss,
he will be liable in conversion if the loss in fact occurs and he cannot be heard to say that the
result was unintended by him. In Moorgate Mercantile Company Ltd. v Finch [1962] 2
QB 701, D borrowed P’s car and used it to transport smuggled watches. He was held liable
in conversion when the car was confiscated by custom officials, since he had intentionally
followed a course of conduct which likely to lead to the seizure of the car.

2. There must be an interference with the Plaintiff’s right over the goods. It will be no defence
that the Defendant acted in good faith or that he was mistaken as to the Plaintiff’s right. In
Consolidated Co. Ltd. v Curtis & Son [1892] 1 QB 495 an auctioneers who mistakenly
believed that certain goods belonged to his client sold and delivered it to a purchaser and
handed over the proceeds of sale to the client was held liable in conversion to the treue
owner of the goods. It was no defence that he had acted in good faith and under a genuine
mistake.

3. There must be a specific demand for the chattel by the Plaintiff and a corresponding refusal
to surrender the goods after a demand for its return has been made.

Types of Conversion

(a) Conversion by taking. It is conversion by taking without lawful justification to take a chattel
out of the possession of the person from them with the intention of exercising a permanent or
temporary dominion over it. See Fouldes v Willoughby [1841] 151 E.R. 1153.

(b) Conversion by using. It is conversion by using where the tortfeasor or Defendant uses the
chattel as if it is his own such act being inconsistent with the right of the owner. See Petre v
Heneage [1701] 88 E. R. 1417 where the Defendant was held liable in conversion by wearing
the jewelry of the Plaintiff. In Lancashire & Yorkshire v Rly. Co. v McNicholl [1981] 88 LJ
KB 601, it was held to be conversion by using where the Defendant used the Plaintiff’s tank to
pour the contents of his carbolic acid.

(c) Conversion by detention. It is conversion by detention where the tortfeasor is in possession of

the chattel without authority and refuses to surrender it upon demand. See Ajao v Ashiru [1973]
1 All NLR where the Defendant was held liable in conversion for the seizure of the peppermill
of the Plaintiff. To constitute conversion in this context, the Defendant must refuse to hand over
the Plaintiff’s goods upon demand for a return and in defiance of the Plaintiff’s rights. See
Clayton v Le Roy [1911] 2 KB 1031.

(d) Conversion by destruction, consumption or alteration. Intentionally destroying the Plaintiff’s

chattel constitutes conversion. See Hollins v Fowler [1875] LR 7 HL 754. Example would be
were the Defendant smashes the Plaintiff’s window (destruction) or drinks his brandy
(consumption). It is also conversion to alter the identity of a chattel, for instance where the
Defendant puts grounded pepper into a cup of milk or bottle of wine.

(e) Conversion by receiving. This is where a chattel is transferred to another and there is a
voluntary reception of same. For example, where A without justification or unlawfully transfers
B’s chattel to C, the mere voluntary reception of the chattel by C constitutes conversion as
against B even though C may have acted bona fide (unaware of B’s title). Generally, a buyer
who receives goods which the seller has no right to sell is liable in conversion to the true owner
because the receiver though innocent has become a party to the denial or dispute of the Plaintiff’s
title and to the resultant interference with his right to the possession of the goods. However, there
are exception to this general for purposes of commercial convenience.

(f) Conversion by wrongful transfer of title or possession. It is conversion to deprive the Plaintiff
of the possession of his goods by wrongfully transferring or disposing of them to another by any
means which either be sale or pledge or delivery whether willfully or by mistake. In Parker v
Godin [1728] 93 ER 866, the pledge of the Plaintiff’s goods was held to be conversion.

(g) Conversion of negotiable and other instruments. Negotiable instruments like a cheque or any
other class of promissory notes are chattel and thus can be a subject matter of conversion. The
value of such chattel does not lie in their forms but in their character as a chose in action. In an
action for conversion of a negotiable instrument, the Plaintiff can claim the full amount
represented by the instrument as held in Lloyds Bank Ltd. v Chartered Bank Nigeria Ltd.
[1929] 1 KB 40. In B.E.W.A.C. Ltd. v African Continental Bank Ltd. [1971] CCHCJ, the
Defendant bank collected/took to a cheque from a client who had no title to it and subsequently
honoured it. The bank was held liable in conversion to the true owner of the cheque and who
recovered the full amount represented.

Remedies for Conversion

The remedies for conversion are damages and return of the chattel. The damages obtainable for
conversion allow recovery of the market value of the goods and special damages. Where this
applies, it nullifies or extinguishes the Plaintiff’s title in the chattel. Alternatively, the chattel can
be restored or recovered alongside damages.

In Neave v Neave [2002] EWHC 784 the Defendant trespassed on land belonging to his
widowed mother and took a number of historic cars that belonged to her. The Judge ordered that
the vehicles be returned and that 3, 000 Pounds damages be paid.
In Scotland v Solomon [2002] EWHC 1886 the Defendants had unlawfully seized and kept
certain goods belonging to the Plaintiff in the course of executing a charging order. The Judge
held that the Defendants were bailees of the goods and had no right to dispose of them.

Detinue

It is the unlawful retention of possession of the chattel of another after a demand for its return
has been made by the Plaintiff or owner with a corresponding refusal to return it by the
Defendant. An action in detinue will lie where:

(a) The Plaintiff has an immediate right to the possession of the chattel and

(b) The tortfeasor fails or refuses to surrender the chattel after a demand has been made for its
return.

In detinue, it is sufficient to show that the tortfeasor has manifested by an overt act an intention
to keep the chattel in view of a demand for its return or release and a refusal to return the chattel.
See Udechukwu v Okwuka where the Defendant was held liable in detinue. In this case, the
Plaintiff bought a car from the Defendant and after the sale, left it on the Defendant’s premises,
having told his (Plaintiff’s) driver to hand over the earnings of the car to the Defendant for safe
keeping. Later, when the Plaintiff went to collect the car, the Defendant refused to allow him to
take it away until he (the Defendant) saw the driver. The Defendant among other things argued
that he was not liable in detinue since his refusal to hand over the car was not categorical but
conditional. However, this argument was dismissed and the Defendant was held liable.

In detinue, the Defendant in refusing to handover the Plaintiff’s goods has shown an intention to
keep it in defiance of the Plaintiff’s rights. See Clayton v Le Roy [1911] 2 KB 1031.

The Elements of Detinue

The elements of Detinue are similar to that of conversion. In itemized form, the elements are:

a. The chattel must belong to the Plaintiff

b. The goods are not owned by the Defendant
c. There must be a specific demand for its return and a corresponding refusal by the
Defendant to return it.