Introduction
This tort is concerned essentially with conduct which is an affront to another’s property or title in a chattel. In other words, it seeks to protect a person’s ownership, control and general dominion over them. As Lord Nicholls said in KUWAITI AIRWAYS CORPORATION v. IRAQI AIRWAYS (Nos. 4 & 5) [2002] A.C. 883 at 1092: “Conversion is the principal means whereby English law protects ownership of goods. Misappropriation of another’s goods constitutes conversion. Committing this tort gives rise to an obligation to pay damages.” This statement was quoted with approval by: Dr. Date-Bah, JSC in the YUNGDONG case (infra).
To understand this tort, we must delve into its origin and development. We shall attempt this briefly here.1
There are three main ways by which A may deprive another of chattel and thereby open himself to an action in law:
a) by wrongly taking it;
b) by wrongly detaining it; or
c) by wrongly disposing of it.
In (a), the possession of the tortfeasor is wrongful ab initio. In (b), he may acquire possession lawfully but retains it wrongfully. In (c), he need not take it nor wrongfully detain it, but he so acts that it is lost to the actual owner.
Originally the law provided three distinct forms of action for the redress of these three situations mentioned, namely:
a) Trespass de bonis asportatis for wrongly taking the chattel.
b) Detinue for wrongful detention of the chattel.
c) Trover for wrongful disposal of the chattel.
Trespass and detinue date from the early beginnings of the law. Trover was later developed, (15th to 16th century).
In the modem law, the term conversion covers the three situations described above, but, originally, it was limited only to the third situation. Originally, therefore, to convert goods meant to dispose of them, to deal with them in such a way that neither the owner nor the wrongdoer had any further possession of them, e.g. by consuming, destroying or selling them. To take away someone else’s goods, however, unlawful, was not to convert them. Nor did the mere detention of the goods of another in defiance of the owner’s title amount to conversion, e.g. money converted by the thief spending it, food by eating it, jewels by pawning them. Conversion now covers the whole field because, as a result of a historical development, it was extended to appropriate or covet the territory which was formerly occupied by the other forms of action.
Historical development
Before trover was developed, interferences now amounting to conversion were redressed by detinue. This is because the defendant in detinue, who was charged with unjustly detaining goods of the plaintiff, was not allowed to object to the action on the grounds that he had already disposed of them and therefore no longer detained them.
Trover was developed, because detinue was an unsatisfactory remedy since it permitted wager of the law (a form of licensed perjury as noted earlier under trespass). So pleaders began to avoid all forms of action in which wager was allowed by the law and invented other forms of action in which the plaintiff was allowed the benefit of a jury. The declaration in trover was simply a variation of the declaration in detinue. The only material difference was that in trover the defendant was sued for wrongly converting the chattel to his own use, while in detinue the allegation was one of unjustly detaining it.
Detinue was of two kinds: (a) detinue sur bailment; and (b) detinue sur trover.
a) was the appropriate remedy if the defendant got the property through a bailment or contract between the parties or some-how lawfully (bailment); and
b) where the defendant had found the goods or come into possession of them in a manner other than by contract with the owner (finding).
Allegations of bailment and finding were, however, fictional, immaterial and untraversable. The means by which the defendant obtained possession of the goods was unimportant. The only issues were:
Did the goods belong to the plaintiff?
Has the defendant unjustly detained them?
The action of trover (and later conversion) was modelled upon that of detinue sur trover. Here the plaintiff alleged three things:
a) that he had possession of certain goods de bonis propriis — a legal fiction (could have alleged a bailment instead);
b) that he casually lost them and defendant found them enough to say, ldevenerunt ad manus defendentis’);
c) the defendant did not return them but wrongfully converted them to his own use.
Trespass and trover were both actions founded upon possession and for centuries they remained as alternative remedies for the wrongful taking or damaging of chattels. There was one important difference as to the measure of damages.
The theory of trespass was that the plaintiff remained owner, with his possession merely interrupted or interfered with, so that when the chattel was tendered back to him he had to accept it. His recovery was limited to damages to the chattel or to his possession, often considerably less than the value of the chattel.
The theory of trover on the other hand was that the defendant, by “converting” the chattel to his own use, had appropriated the plaintiffs property for which he was required to compensate him. The plaintiff was therefore not required to take back the chattel when tendered to him and he recovered, as damages, the full value of the chattel at the time and place of conversion. Thus the defendant was forced to buy the chattel through trover.
The basic difference between trespass and trover or conversion was poignantly brought out in Fouldes v. Willoughby. This was an action in trover for two horses. The defendant was manager of a ferry. The plaintiff embarked upon the defendant’s ferry with two horses and paid the appropriate fare. When the defendant came on board, he was told that the plaintiff had misbehaved on board; he therefore told the plaintiff that he would not carry his horses and that he should take them off the boat. The plaintiff refused to do this. The defendant then took the horses off the boat and put them onshore and they were conveyed to a hotel by his brother. The plaintiff remained on board and was conveyed to the other bank. Later, the horses were sold to defray the cost of keeping them. The plaintiff thereupon brought this action for trover.
The learned judge, in summing up, told the jury that the defendant, by taking the horses from the plaintiff and turning them out of the vessel, had been guilty of conversion unless they thought the plaintiffs conduct justified his removal from the boat and he had refused to go without the horses. The defendant appealed. It was held that this was a misdirection because, per Lord Abinger C.B.: “… a simple asportation of a chattel, without any intention of making any further use of it, although it may be a sufficient foundation for an action of trespass, is not sufficient to establish a conversion.”
The intention of the defendant should have been put to the jury. For, if his object was simply to induce the plaintiff to go on shore himself, then the defendant had not done anything inconsistent with or adverse to the rights which the plaintiff had in the horses. Baron Alderson explained the law in the following terms:
“Any asportation of a chattel for the use of the defendant or a third person amounts to conversion; for this simple reason, that it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, who is entitled to the use of it at all times and in all places. When, therefore, a man takes that chattel, either for the use of himself or of another, it is a conversion. So, if a man has possession of my chattel, and refuses to deliver it up, this is an assertion of a right inconsistent with my general dominion over it and the use which at all limes and in all places, I am entitled to make of it; and consequently amounts to an act of conversion. … But the question here is, where a man does an act, the effect of which is not for a moment to interfere with my dominion over the chattel, but, on the contrary, recognising throughout my title to it, can such an act as that be said to amount to a conversion? / think it cannot.”
Thus the action in trover failed in the case because there was no intention on the part of the defendant to interfere with the plaintiffs right or dominion over the horses.
What is conversion then?
Conversion may be defined (in the words of Street or Baron Alderson in Fouldes v. Willonghby) as an intentional interference or dealing with the chattel, which is seriously inconsistent with the possession or right to immediate possession of another.
Quoting with approval Lord Nicholls’ discussion on the nature of the tort in KUWAITI AIRWAYS CORPORATION v. IRAQI AIRWAYS (Nos. 4 &5) at 1054, the supreme court of Ghana (per Dr. Date-Bali JSC) at p. 846 in YOUNGDONG INDUSTRIES LTD. v. RORO SERVICES “reflected on the tort thus; ” Mere unauthorised retention of another’s goods is not conversion of them. Mere possession of another’s goods without title is not necessarily in consistent with the rights of the owner. To constitute conversion detention must be adverse to the owner, excluding him from the goods. It must be accompanied by an intention to keep the goods”.
In similar vein, the Supreme Court of Ghana stated in STANDARD CHARTERED BANK (GHANA) LTD. v. Nelson [1998-1999] SC GLR 810 at 817 thus: ….conversion, then, is the wrongful possession of goods or chattel belonging to another and the use thereof by that other.” See also T. K. SERBEH & Co. LTD v MENSAH, [2002-2006] SC GLR 341.
There are two elements contained in this interference: (a) dealing with the chattel in a manner inconsistent with the right of the person entitled to it; and (b) exhibiting an intention, by such dealing, to deny another’s right or to assert a right which is adverse to or at variance with his. Therefore an action in conversion cannot succeed, if the interference does not lend itself to the conclusion that the defendant is setting up a rival claim.
TITLE TO SUE (Capacity)
In conversion, the plaintiff must have either actual possession or a right to immediate possession at the time of the interference. Thus, although the tort of conversion protects title, and although from the point of view of the defendant, his action can only be challenged, if it is inconsistent with ownership or the plaintiff’s title, the interest that the plaintiff must prove to succeed is short of actual ownership.
This is exemplified by the decision in Armory v. Delamirie? In this case, the plaintiff, a chimney sweeper’s boy, found a jewel and carried it to the defendant’s shop (the defendant was a goldsmith) to know what it was, and delivered it to the apprentice who, under the pretence of weighing it, took out the stones, and informed his master that it was worth three and half pence. The master offered the money to the boy who refused to take it and insisted on having the jewel back. The apprentice gave him back the socket without the stones. He sued in trover.
It was held (per Pratt CJ.) as follows:
1. The finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and can consequently bring an action in trover.
2. The action in law must be against the master, who gives credit to his apprentice and is answerable for his neglect.
3. The measure of damages should be assessed at the value of the jewel of the finest water that would fill the socket, i.e. the value of the best jewels.
Thus mere possession, without title, was held in this case to be sufficient to maintain an action in conversion.
The reason for permitting the person in possession to sue in conversion is said to be that the person in possession has sufficient title against the wrongdoer who has no rights at all. He is also in a better position to account to the true owner should he come back later. But an owner not in possession cannot maintain an action in trover. So it was held in Gordon v. Harper? However, an owner out of possession is not entirely remediless. He can sue in an action on the case for damage done to his reversionary interest with respect to those interferences which would make the reversionary interest valueless see the Pen fold Wines Proprietary Ltd. v. Elliot case.
A case in point is Mears v. London & South Western Rly. Co. The plaintiff was the owner of a certain barge which he had hired to a third person. The defendant’s servants negligently caused damage of a permanent nature to it, while they were lifting a boiler from the barge. At the time the damage took place, the barge hiring agreement was still subsisting. The defendants denied any liability. It was held (per Erie C.J. and Williams J) that trover will lie for a permanent injury done to a chattel while the owner’s right to possession is suspended. The determination of what would suffice as possession to support an action in conversion can only be confidently speculated on by reference to the decided cases and principles emerging therefrom.
What is possession for the purposes of this tort?
Professor Street defines it in terms of an animus possidendi — an intention and a factum (power). He explains that possession connotes the power to control and the intention to exclude all others from the enjoyment of the chattel. This ideal and simplified conception is watered down in its application in the cases. For example, if one does not know about a chattel, you can hardly be said to have an intention to exclude others from its use or enjoyment. Yet the tort often protects damage to things in the subsoil and it can hardly be said that a person knows what is beneath the soil. In Ahiable v. Dosu, it was held that the owner of land was prima facie owner of chattels found in it unless he divested himself by abandonment, sale or gift.
For the purposes of possession in the tort, the law distinguishes between chattels found in or attached to land and those found on land. The following three cases discuss the law on possession relating to chattels found in or attached to the land:
1. South Staffordshire Water Co. v. Sharman. In 1895, the plaintiffs employed the defendant together with a number of other workmen to clean a pool for them. During the cleaning, the defendant found two gold rings at the bottom of the pool and refused to give them to the plaintiffs when required. He gave them to the police who, failing to find the owner returned them to him. The plaintiffs sued the defendant in detinue for the recovery of the rings. The county court gave judgment for the defendant on the authority of Armory v. Delamirie. No contract existed between them requiring the handing over of things found during the cleaning. The plaintiffs appealed. The appeal was allowed (per Lord Russell of Killowen C.J., Wills J concurring).
Speaking for the appellate court, Lord Russell, relying on Pollock & Wrights’, Essay on Possession in the Common Law at p. 41, quoted the law thus: “The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it. And it makes no difference that the possessor is not aware of the tiling’s existence … It is free to anyone who requires a specific intention as part of a de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession constituted by the occupier’s general power and intent to exclude unauthorised interference… Where a person has possession of a house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or a stranger, the presumption is that the possession of that tiling is in the owner of the “locus in quo”
2. In Elwes v. Brigg Gas Co., the plaintiff, Lord of the Manor of Brigg, demised to the defendants, for 99 years, a piece of land in Brigg, in December 1885, reserving to himself all mines and minerals. In April 1886, the defendant’s company, while excavating the land prior to the erection of a gasholder, discovered, embedded in the clay about six feet below the surface, a prehistoric boat (about 2000 years old). The plaintiff asked for the delivery to him of the boat and die defendant declined, asserting that the boat belonged to them. The plaintiff sued. It was held that the plaintiff had a lawful possession of the boat, good against all the world and therefore the property in the boat. It was immaterial that he was unaware of the existence of the boat. The licence to remove and dispose extended to the clay and ordinary soil likely to be found in pursuing the licence to excavate but did not extend to what was unknown and not contemplated and therefore did not comprise the boat.
3. In London Corporation v. Appleyard, the plaintiffs, freeholders of a building site, had leased it to A who was financed by B. A clause in the agreement required the handing over of “every relic or article of antiquity, rarity or value” to the plaintiffs. A wrote to B confirming that they held the property in trust for B. B entered into a building contract with C for the construction of a new building. Two workmen of C, while working on the site, found, in the cellar, an old wall safe built into the wall. Inside the safe was a wooden box containing bank notes issued in 1943 or 1944 to the value of £5,728. The true owners were never found. On the issue of who was entitled to the bank notes in the absence of the true owner, the court held that it was the corporation.
This conclusion was reached by the court on the grounds that:
a) the safe being built into the wall formed part of the demised premises and so the safe and its contents belonged either to A or B, one or other of whom was in possession of the premises and thus had a better title than the finders.
b) The bank notes were articles of value within the clause by which the corporation had reserved such things to themselves.
c) possession was in B either because (1) they financed it or (ii) because of the letter they were written by A.
These three cases state clearly the principle that the occupier or owner of a land to which things are attached has a right to them when found. They indicate that possession of the premises will prevail, against the finder. But the right of the tine owner will always prevail; that is the true owner of a chattel found on land has a title superior to that of anybody else. As was stated in Moffat v. Kazana,18 the true owner’s right to sue is based not on possession but on a right to immediate possession.
The distinction between chattels found on land and in land makes trivials important. If a chattel is found on a dry patch, the finder has possession; if in mud, the owner or occupier has possession! But maybe this is to encourage finders to be honest, though the criminal law already seems to do this.
As regards chattels found on the land, as opposed to attached to or under, there is a conflict as to who has the right to sue. Harris in his article19 suggests that, on public policy grounds, the owner has this right, since there is a chance that he will remember where he placed it and 4»o back for it.
From the point f view of the protection of the true owner, possession must be said to vest in the occup.er of the land on which the chattel is found as against the finder. But the law does not always work in this way. We can illustrate this observation with the decision in Bridges v. Hawkesworth. Bank notes were accidentally dropped by the owner in the shop of the defendant. The plaintiff found them on the floor. He gave them to the shop-keeper to find the owner. Later, he sought to recover them from the shopkeeper who refused to surrender them to him. In an action by the plaintiff, the county court judge decided that the defendant was entitled to the custody of the notes as against the plaintiff. This was reversed on appeal by the Court of Queen’s Bench.
This is how Patterson J explained the decision on appeal: “The notes were never in the custody of the defendant, nor within the protection of his house, before they were found, as they would have been had they been intentionally deposited there; and the defendant has come under no responsibility, except from the communication made to him by the plaintiff, the finder, and the steps taken by way of advertisement. … We find, therefore, no circumstances in this case to take it out of the general rule of law, that the finder of a lost article is entitled to it as against all persons except the real owner, and we think that that rule must prevail and that the learned judge was mistaken in holding that the place in which they were found makes any legal difference.”
Similarly in Hannah v. Peel, the defendant was owner of a house he had never occupied himself. While the house was requisitioned, the plaintiff, a lance-corporal, found in a bedroom used as a sick bay, loose in a crevice on top of a window frame, a Brooch the owner of which was unknown. On the advice of his commanding officer, he handed it over to the police and received a receipt for it. There was no evidence that the defendant had any knowledge of the existence of the brooch before it was found by plaintiff. But the police, to whom the plaintiff handed it to ascertain its owner, gave it to the defendant who, claiming it because it was on his premises, sold it. The plaintiff thereupon sued the defendant for the return of the brooch or its value and damages for its detention.
Birket J. held that the plaintiff must succeed. The judge based his decision on Bridges v. Hawkesworth. He was satisfied that the brooch was “lost” in the ordinary sense of the word and “found” again in the ordinary sense. The defendant had no knowledge of it until it was brought to his notice. The finder was held entitled to the chattel as against the owner of the premises who had also not been physically in occupation of the premises. [NB: the fact that the owner was never in occupation may probably have been the reason the case was so decided].
However, in Hibbert v. McKieman, the appellant went on to the links of a gold club and took eight golf balls “animus furandi,” (to use Chief Justice Goddard’s description of his intention) which, it was found, had been abandoned by their former owners. He knew a police officer had been stationed there to warn off trespassers. The appellant was arrested, charged with stealing the bails and convicted. He appealed. The appeal was dismissed.
Lord Goddard C.J., said: “Every householder or occupier of land means or intends to exclude thieves and wrongdoers from the property occupied by him, and this confers on him a special property in goods found on his land sufficient to support an indictment if the goods are taken therefrom, not under a claim of right, but with a felonious intent.”
[NB: l. The club was held to have possession in the balls enmeshed in grass on the surface of the golf course.
2. The court took account of the fact that the club had positioned a policeman on the precincts to warn off trespassers – this was held to constitute the animus possidendi. For his apart, Pritchard J expressed himself as follows: “Before it can be said that the members did acquire such a possession of the balls, I think it must appear from the facts found that they intended to exclude others from interfering with the balls, and that they had over them a degree of power which was sufficient for the purpose of giving effect to such intent. In my judgment, it is clear on the facts that the members did so intend and had such power.”
It seems then that there are cases supporting both views. It would appear that the preferable statement of the law in this regard would be, namely that whether the owner of the land is in possession of chattels found loosely on the land depends on whether he intends and has the power to exercise physical control over them. If they are under or attached to the land, this will be presumed; if, on the other hand, they are loose on the land, the nature of the chattel, the extent of public access to the land, whether the owner occupies the land, and other like factors will be relevant in deciding whether the owner of the land has the necessary animus and factum to be said to be in possession of them when found.
RIGHT TO IMMEDIATE POSSESSION
As noted already, the plaintiff in an action in conversion must prove cither that he was in possession of the chattel at the time of the interference or had a right to immediate possession of it. By right to immediate possession, we mean that the plaintiff must be unconditionally entitled to assume possession of the goods if he so wishes. Such an unconditional right to possession is sufficient to ground an action in conversion. Thus, in Lord v. Price, the plaintiff bought two lots of cotton at an auction under conditions which required him to pay a deposit at the time of the sale and the balance immediately after and before delivery. The Plaintiff paid the deposit but did not pay the residue of the purchase money and left the cotton in the field where the auction had been held. On the same day, he removed 112 of the lots. When he went later to take the rest it was gone, removed by the defend mistakenly. The plaintiff sued for alleged conversion. The learned assessor dismissed the plaintiffs action on the ground that the vendor’s lien for unpaid purchase-money prevented the plaintiff from maintaining trover and gave leave to the plaintiff to move the Court of Exchequer for a new trial. A rule having been accordingly obtained, t was held (per Bramwell B. and Amphlett B) that the rule must be discharged on the grounds that the action cannot be maintained without a right of present possession in the plaintiff. That right was in the vendor who was entitled to retain possession of the goods until the balance had been paid. The vendor could have maintained the action but not the plaintiff.
In conversion cases based on sale then, it would seem that a buyer under a sale transaction not involving credit has no sufficient interest to sue unless he has paid the purchase price. Where however the goods are sold on credit, there is no seller’s lien and the plaintiff may then sue. This rule involving credit sales was developed in Bloxam v. Sanders. The defendant, a hop-merchant, on several days sold various parcels of hops to B by contract. The usual time for payment in the trade was the second Saturday subsequent to the purchase. B did not pay for the hops at the usual time and the defendant gave notice that unless they were paid for by a certain date they would be resold. They were not paid for and the defendant resold a part with B’s consent. B afterwards became bankrupt. The defendant then sold the rest without the assent of B or his assignees (the plaintiffs in this case). The defendant delivered accounts of sales of the hops sold without B’s consent and charged B warehouse rent and commission. The hops were stated to have been sold for B. Apart from the hops bought from the defendants, B had also placed some in their warehouse for sale by them. Some of that and the one bought from the defendants were left in the warehouse. B’s assignees demanded these from the defendants and they refused to deliver them. Whereupon the assignee brought this action. The jury found that the defendant had not rescinded the contract of sale. Bayley gave judgment to the plaintiffs in respect of hops not bought from the defendants. As regards those bought from them, he held that an action in conversion will not lie. This is because although a vendee of goods acquires a right of property by the contract of sale, yet he does not acquire a right of possession to the goods until he pays or tenders the price.
“Where goods are sold and nothing is said as to the time of the delivery, or time of payment, and everything the seller has to do with them is complete, the property vests in the buyer, so as to subject him to the risk of any accident which may happen to the goods, and the seller is liable to deliver them whenever they are demanded upon payment of the price; but the buyer has no right to have possession of the goods till he pays the price. … If the goods are sold on credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him; but his right of possession is not absolute; it is liable to be defeated if he becomes insolvent before he obtains possession.
MENTAL STATE REQUIRED FOR LIABILITY IN CONVERSION
In Simmons v. Lillystone, we find the following statement of principle by Baron Parke: “… in order to constitute a conversion, there must be an intention of the defendant to take to himself the property in the goods, or to deprive the plaintiff of it. If the entire article is destroyed, as for instance, by burning it, that would be a taking of the property from the plaintiff and depriving him of it, although the defendant might not be considered as appropriating it to his own use. In this case, nothing is done but cutting the timber, and by accident, it is washed away by the river … we think that does not amount to conversion.”
The basic rule then is that conversion is based on intentional conduct. Negligently interfering with a chattel is not enough. There is no need for an intention on the part of the defendant to consciously do wrong. It is enough that the defendant did die act intentionally, which is inconsistent with the true owner’s right to possession. Ignorance and accidents are thus no defences to conversion. That is to say the defendant must do intentionally the act which the plaintiff relies on as conversion — not that the defendant intends to commit conversion.
Williams v. Geese illustrates the view that negligence does not constitute conversion. This was an action for trover of a coat and pantalons. The defendant kept a public house at Oxford frequented by fanners. The plaintiff’s clothes, packed in a box, were deposited in the defendant’s kitchen behind the settee by a person who said the box was to stay till called for. The box was never seen again by the plaintiff but when he inquired for it, the defendant said “I suppose it is behind the settee.” The court gave verdict for the plaintiff with leave for the defendant to move to enter a non-suit instead, on the ground that there was no evidence of conversion. A rule nisi was obtained and was subsequently made absolute. In a similar action by a sister of the plaintiff against the defendant, it was proved that the defendant received parcels for carriers; that the parcels were placed behind the settee and when the parcel in question was asked for the defendant’s wife said: “my husband has sent it, no doubt, by Croft the Carrier: he has a bad memory, it is a pity you did not speak to me.” Verdict was given for the defendant. The plaintiff moved for a new trial on the ground that the wife’s language showed that the defendant had interfered by giving directions, which would amount to conversion. The court rejected this contention. In the opinion of the court, the evidence disclosed only negligence and that will not support an action in conversion.
Ashby v. Tolhurst is to the same effect. Here the owner of a motor car left it in a private parking ground. On payment of one shilling, he received a ticket containing a receipt for the one shilling followed by a provision:
“The proprietors do not take any responsibility for the safe custody of any car or articles nor for any damage to the cars or articles however caused … all cars being left in all respect entirely at their owners’ risk.”
When the owner returned for his car, the attendant told him that he had just given it to the owner’s friend. The man who had so obtained the car had neither the key nor the ticket. The car was never recovered. The owner brought this action against the car park proprietors for damages, among others, for conversion by misdelivery. The county court judge found for the plaintiff and the defendant appealed.
It was held (per Greene MR, Romer and Scott L.JJ) that: The relation between proprietors and car owner was that of licensor and licensee; therefore the proprietors came under no liability whatsoever. No possession could therefore pass to the proprietors. The attendant’s act did not amount to misdelivery. Even if a contract of bailment could be inferred and the act of the attendant constituted misdelivery, the proprietors were relieved of all liability by the conditions. No term could be implied that no ticket, no parting with car.
This case is authority for the proposition that negligence will not constitute conversion.
STRICT LIABILITY
Liability in conversion is strict i.e. no need to prove fault on the part of defendant. This is illustrated by the decision in Rollins v. Fowler, B fraudulently obtained cotton from F. H (a cotton broker who was ignorant of B’s fraud on F) purchased it in good faith from B in the belief that M, one of his ordinary clients, would accept it. M did afterwards accept it. H received only a broker’s commission from M. It was held that H bought of B as a principal and by transferring to M had committed conversion against F the true owners: “Any person who, however, innocently obtains possession of the goods of a person who has been fraudulently deprived of them and disposes of them, whether for his own benefit or that of any other person, is liable in conversion.”
Cleasby J said robustly at 639 that: “… the liability under it (i.e. conversion) is founded upon what has been regarded as a salutory rule for the protection of property, that persons deal with the properly in chattels or exercise acts of ownership over them at their peril.”
See also Kabbara Bros. Transport v. Anin Here the plaintiffs’ vehicle, at the instance of the first defendant (judgment creditor), was seized by a deputy sheriff, and sold by the second defendant (auctioneer) to the third defendant, a bona fide purchaser. The vehicle did not belong to the judgment debtor. Counsel for the second defendant objected to the action on the ground that the second defendant was acting as agent for the deputy sheriff who is an officer of the court. Counsel for the third defendant objected on the ground that his client bought as an innocent purchaser for value. Edusei J (as he then was) overruled the objections.
In his view: “There had been an adverse dealing with the plaintiffs’ property in the vehicle with the result that the plaintiffs have been deprived of the immediate use and enjoyment of the said vehicle. Any person dealing adversely with the property of , the plaintiffs may have to answer his claim and the action of trover or conversion against any such person.”
Dr. Date-Bah, JSC has underlined the point more recently in YOUNGDONG INDUSTRIES LTD v. RORO SERVICES, [2005-2006] SC GLR 810 at 841 thus: ….conversion is a tort of strict liability. In other words, if an act amounts to
conversion, it is irrelevant to the liability of the tort feasor whether he or she is aware of that fact or not or is at fault.
SUBJECT MATTER OF CONVERSION
Types of property which can be converted traditionally were those based on the fiction of “losing and finding.” Only tangible property i.e. chattels could be lost and found and therefore form the subject mailer of conversion. For example, land could not be lost or found, so could not form the subject matter of conversion. So also choses in action could not form the subject matter of conversion. Commercial convenience and business exigencies however, dictated a review of this fiction. Thus, it is that intangible properly or choses in action, if represented in the ordinary course of business by a special written document (e.g. stocks, bonds, bills, the value of a cheque), were added to the subject matter of conversion. Conversion of the document is taken as conversion of a chattel equal in value to the face value evidenced by the document. In Ghana, an even higher inroad has been made into the rule that only tangible property can form the subject mater of conversion. In De Wills Archbold v. C.F.A.O.. Hayfron-Benjamin J (as he then was) held that a musical composition which had not even been reduced into writing had been converted. The law in this area was further developed in Hartley v. Ejura Farms?
CONVERSION IN RELATION TO BAILMENTS
A bailee of goods is considered as having sufficient possession of chattels in his charge to enable him sue. If the bailment is at will the bailor may also sue. The principles governing this area of the law were discussed in Penfold. Here the law distinguishes between a voluntary and an involuntary bailee. If goods are delivered into the possession of a person whom the law characterises as an involuntary bailee (a person who comes into possession of a chattel through no act of his own and without his consent), then if that person lakes reasonable steps to restore the goods to the one he honestly believes to be the true owner, or an accredited agent of the owner, and if the goods are as a result of this honest mistake misdelivered to a person other than the true owner, the law will absolve the involuntary bailee provided he was not negligent.
But if he disposes of the goods otherwise, he will be liable. Two cases throw light on this last point.
The first is Hiort v. Bott: The plaintiffs sent the defendant an invoice for barley, which staled that the bailey was bought by the defendant from the plaintiffs through G as a broker and also a delivery order which made the barley deliverable to the order of the consignor or consignee. The defendant had not in fact ordered any barley from the plaintiffs. G called on the defendant who showed him the documents and told him it was a mistake. G said that it was, and asked the defendant to endorse the order to him, for the purpose, as he said, of saving the expense of obtaining a fresh delivery order. The defendant indorsed the order to G, who got the barley from the carriers and then absconded, hi an action for trover for the bailey, the jury found that the defendant had no intention of appropriating the barley to his own use but indorsed the order for the purpose of correcting what he believed to be an error and returning the bailey to the plaintiff. It was held that trover will lie. The defendant, by indorsing the order for G, did an unauthorised act and deprived the plaintiff of their property.
Elvin & Powell v. Plummer Roddis & Co. The plaintiffs were rain-coat manufacturers. X entered their ware-house and ordered £350 worth of rain-coats. X asked that the goods be sent to the Brighton branch of the defendants. X then sent a telegram to this branch which read: “Goods dispatched to your branch in error. Sending van to collect.” He then sent his accomplice in a van to collect them. The accomplice handed in a trade card of the plaintiffs. The defendants, after making reasonable inquiries, gave him the rain-coats. X and his accomplice were never seen again. The plaintiffs sued on two counts: 1. That the defendants were bailees and liable because they were negligent; and 2. conversion.
Hawke J rejected both claims because, according to him, in the case of count one, the defendants had not been negligent. On count two, the plaintiffs’ counsel admitted that no evidence existed that the defendant intended to deny the plaintiffs’ right in the goods or to assert any light inconsistent with it. But ordinarily this should not absolve the defendant because, in Hiort v. Bolt, the jury expressly found that the defendant in signing the order had no intention of appropriating the barley to his own use. He distinguished Hiort v. Bott from the present case on the grounds that here the defendants were involuntary bailees (I.B.). So no liability.
SPECIFIC EXAMPLES OF CONVERSION
CONVERSION BY REFUSAL TO SURRENDER ON DEMAND
If a person in possession of the plaintiff’s chattel refuses to hand it over on demand, this constitutes conversion. The defendant, however, must still be in possession at the time of the demand. The law allows a person to investigate within reasonable time to ascertain the title of the person demanding. Therefore withholding for a reasonable time to investigate will not amount to conversion under this head. Demand and refusal is therefore only evidence of conversion.
DENIAL OF ACCESS TO PLAINTIFFS’ TITLE
Conversion can be committed by denying to a plaintiff the right to have access to his own chattel. However, the act must constitute an absolute denial and repudiation of the plaintiffs’ rights. The principle can be illustrated by the decision in Oakley v. Lyster. The plaintiff-respondent, a demolition contractor, bought and undertook to clear away an aerodrome which had become useless after the armistice. In consequence, he became entitled to about 8000 tons of hard core and tar macadam. To clear the stuff from where it was, he rented a space of three and half acres of land on die opposite side of the road and there deposited the stuff. He sold a large portion of it but had still at the material time about 4000 tons left. While his tenancy of the three and a half acres was still subsisting, the defendant-appellant bought the freehold of the property on which they were. The defendant-appellant convinced himself that he had an immediate right to the area covered by the tenancy as well as the stuff. So he refused to let the plaintiff take his stuff. The plaintiff sued in conversion and judgment having been given to him, the defendant appealed. It was held (Scrutton, Greer & Slesser L.JJ) that the appeal must be dismissed. It was clear to the judges that the appellant was exercising dominion over the stuff inconsistent with the rights of the true owner and with the intention of denying the plaintiff’s rights over them.
The above case may ‘be contrasted with England v. Cowley where a statement that goods arc not to be removed until rent is paid was held by a majority of the court not to amount to an absolute interference with the plaintiffs’ rights and therefore not conversion. On this point of partial or absolute denial, see also the decision in Simmons v. Lillystone where denials were deemed partial and therefore no conversion was committed.
Contrast England v. Cowley with the Ghanaian case of African Drug Co. v. Kumasi City Council In this case the plaintiffs were licensees of a store at Kumasi market owned by the defendants. Because the plaintiffs were in arrears of rent, a servant of the defendants locked them out of their store, thus preventing their access to documents in the store which included an import licence for drugs. Because of the plaintiffs’ failure to gain access to this licence they were unable to take delivery from the Customs Department of the drugs and the Department eventually sold them at a public auction as unclaimed goods.
On these facts, Mensa Boison J (as he then was) said: “The defendants’ act of locking out the plaintiffs was found wilful, and evinced an intention to exercise dominion over whatever chattels were in the store, by the refusal to hand over the keys initially. The defendants must suffer the risk that the chattels included [the import license], which by its peculiar nature may be said to represent the consignment of drugs. I find the defendants were guilty of conversion of the [import licence.]”
Thus Mensa Boison J ‘as he then was) held a non-absolute denial of access to the plaintiffs’ documents to I e conversion.
Wansborough & Anor. v. Maton is an example of a situation in which the denial of access was absolute. The plaintiffs were tenants of the defendant. They erected a barn on the land. After the expiration of the tenancy, they left the land and wanted to take away the bam. The defendants refused unless they agreed with him on another matter in dispute. Afterwards the plaintiffs sent people to bring the bam. The defendant was on the premises at that time; he sent the men away and locked the gates after them. The plaintiffs then brought the suit for trover. It was held that the defendant was liable since the bam was not a fixture and could therefore not be considered as part of the freehold.