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Is it legal to seize another person’s property to offset a debt?

Introduction:

The act of detention of a chattel or seizing of property belonging to another and refusing to deliver up the property upon demand by the owner is called “detinue” in law.

Thus, detinue is a wrongful detention of a person’s chattel by another which is evidenced by the refusal of the person detaining the property or his agent to deliver up the property upon demand by the owner. This article is based on the case of Labode v. Otubu (2001) 7 NWLR (Pt. 712) 256 at 260.

Brief facts of the case:

The original owner of the property known as No. 6 Calabar Street, Surulere, Lagos State assigned the property to Mrs. Florence Omotayo Labode for a valuable consideration. On the ground of convenience, C.O Fadipe, Esq., the solicitor of the original owner was retained by Mrs. Florence Omotayo Labode to process the Deed of Assignment and to obtain Governor’s consent to the transaction to which the original land certificate and all other relevant documents were handed over to the solicitor.

However, due to the protracted delay in obtaining the necessary consent; Mrs. Florence Omotayo Labode made enquiries which led her to the discovery that C.O Fadipe, Esq., had deposited the land certificate as security for money advanced to him by Dr. Godfrey Otubu and Cutavon Nigeria Ltd.

When Mrs. Florence Omotayo Labode demanded the return of the land certificate from Dr. Godfrey Otubu and Cutavon Nigeria Ltd, they refused to return it on the ground that they never had any transaction with her.

Following the refusal of Dr. Godfrey Otubu and Cutavon Nigeria Ltd to surrender the land certificate, Mrs. Florence Omotayo Labode commenced action in detinue against Dr. Godfrey Otubu and Cutavon Nigeria Ltd., to compel the duo to surrender the document and pay for damages for “wrongful refusal to release” the land documents.

The meaning of detinue:

Detinue is a wrongful retention of the possession of goods and the wrong arises upon the detention of the chattel after demand for its return by the person entitled to its immediate possession has been made. See the cases of Julius Berger Nigeria Plc. v. Omogui (2001) 6 S.C 185, General & Financial Facilities Ltd. v. Cooks Cars (Romford) Ltd (1963) 1 NMLR 644.

In the case of Ordia v. Piedmont Nigeria Ltd (1995) 2 NWLR (Pt. 379) 516-527, the Supreme Court per Uwaifo JSC at p. 28, paras. B-E, held that:

“Detinue is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and this continues until delivery of the goods or judgment in the action for detinue”.

From the above decision of the Supreme Court, an action in detinue arises the moment that the person in possession of the goods refuses to surrender the goods or chattel in his custody.

Nature of Detinue:

Action in detinue is in the nature of an action in rem in which the aggrieved party may sue and seek the following reliefs:

  1. For the value of the goods as assessed and also damages for its detention;
  2. For the recovery of its value as assessed and also damages for its detention; or
  3.  For the return of the goods and damages for its detention.

Describing the nature of an action in detinue, the Supreme Courts have held in the case of J.E Oshevire Ltd. v. Tripoli Motors (1997) 5 NWLR (Pt. 503) where per Iguh JSC at pages 36-37, paras. D-A stated that:

“The gist of liability in detinue is the wrongful detention of the plaintiff’s chattel by the defendant after the plaintiff has made demand for its return. Without proof of wrongful detention on the part of the defendant, a claim in detinue cannot arise. A detention is not wrongful unless the defendant’s possession is adverse. Accordingly for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiff’s rightful claim thereto and this is usually manifested by proving a demand by the plaintiff and a refusal by the defendant to return or deliver the chattel to the plaintiff. When, however, the refusal is conditional, a case of withholding the chattel against the will of the plaintiff is not necessarily established, provided the condition is reasonable and not a mere device to put off the plaintiff.”

The above findings of the court was also upheld in the case of Christopher Udechukwu v. Isaac Okwuka (1956) SCNLR 189; (1956) 1 F.S.C 71.

Available remedies in an action for detinue:

Since detinue is an action only in tort for failure to deliver up the plaintiff’s chattel and it entails claim for the return of the chattel or its value and damages for its detention, a plaintiff has three remedies open to him and it is up to him to decide which option of the following to take as follows:

  1. Claim for value of the chattel and damages for its detention. The value of the chattel is as proved at the time of judgment at the trial court and the onus is on the plaintiff to prove the value. He is also to show by evidence the damage suffered by the detention.
  2. Claim for the return of the chattel and damages for its detention.
  3. Claim for the return of the chattel or its value as assessed and damages for its detention. This option appears to be the best form of action for if the chattel has otherwise been removed from jurisdiction or hidden away and out of the sight of the sheriff there is no alternative other than a distrait for the value of the chattel as assessed plus damages for its detention.

See the cases of General and Finance Facilities Ltd. v. Cooks Cars (1963) 1 WLR 644, Oshevire Ltd v. Tripoli Motors (1997) 4 SCNJ 246, (1997) 5 NWLR (Pt. 503) 1, Chief J.K Odumosu v. ACB Ltd (1976) 11 SC 55 at 65; (1976) 6 ECSLR 435, (1976) 10 NSCC 635, Oseyomon and Anor v. Ojo (1997) SCNJ 365 at 385-386 and Halsbury’s Law of England 3rd Edition, vol. 33 pages 774 to 803, paragraphs 1285 to 1345.

Conclusion:

At common law, a claim in detinue lay at the suit of a person who has an immediate right to the possession of the goods in issue against another who is in actual possession of them and who upon proper demand, failed or refused to deliver them up without lawful excuse. See the case of Iheanacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 257.

It is important to note that the original taking may be lawful but once the detention becomes wrongful, the action will lie. The detention becomes wrongful if the person in possession of the chattel or goods has no reasonable justification for retaining the goods or chattel after a demand has been made for their return and the refusal is unconditional. See the cases of Alicia Hosiery Ltd. v. Brown Shipley & Co. Ltd (1970) 1 QB 195 at 207 and C.D.C Nigeria Ltd v. SCOA Nigeria Ltd. (2007) Vol. 30 WRN 81 at 144 – 145, lines 40-45 SC.

For further legal assistance on property and real estate transactions, do not hesitate to contact the author:

Kingsley Izimah, Esq.

Principal Partner,

SK Solicitors 

0806-809-5282 

www.sk-solictorsng.com

sksolicitors.ng@gmail.com or

info@sk-solicitorsng.com

SK Solicitors

Law Firm | Immigration Law | Corporate Law | Commercial Law | Real Estate and Property Law | Legal Advisory and Consultants.

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