Any legally unjustified detention of a plaintiff’s goods constitutes detinue.
The plaintiff would have to prove that he had a right to immediate possession and that the defendant refused to hand them over on demand. Thus expressed, it becomes coterminous with the tort of conversion and is embraced by it. Generally, therefore, whenever C lies, D will also be available. The difference lies in the fact that, in detinue, even where the defendant no longer has the goods in his possession at the time of the demand, he is liable to the plaintiff, unless he can show the loss was accidental. On this last point, see the case of Houghland v. R.R. Law (Luxury) Coaches Ltd. It is also a defence in detinue if the defendant can show that he took possession of the plaintiff’s goods on grounds of necessity see Sorrel v. Paget} and General & Finance Facilities Ltd. v. Cooks Cars.
Also detinue differs from conversion in the areas of remedies as Diplock J said in General & Finance Facilities Ltd. v. Cooks Cars. Conversion is an action in personam. The action in detinue is in rem. Conversion is thus for mere pecuniary compensation but detinue may afford: (a) the value of the thing as assessed; (b) specific restitution or else value plus damages for its retention; and (c) specific restitution and damages for its detention. Detinue also entitles the plaintiff to the issue of a writ for delivery. Relief (a) is the usual remedy, for relief (b).
In conversion the value of the goods is assessed as at the time of the Conversion. But, in detinue, it is assessed as at the time of the judgment. This has a great commercial value; for the market price of the goods may be higher at the time of judgment. Cf Tabury v. GCB where damage to fish that had been unlawfully detained was assessed as at the time of detention, not of judgment. The decision here was given clearly per incuriam.
The Supreme Court of Ghana (per Hayfron – Benjamin) in STANDARD CHARTERED BANK (GHANA) LTD. v. NELSON, [1998-1999] SC GLR 810 at 822 brought out the difference between CONVERSION and DETINUE as follows: “We think the confusion …arises from the difficulty of counsel and the judges in appreciating the thin but clear line of distinction between the torts of detinue and conversion. In the former, the action is for restitution intergrun, and damages may be exacted on account of the special quality of the chattel. In the latter, the dealing with the chattel is unlawful and the action is for the recovery of the chattel or its value together with damages for consequential loss where so warranted or indicated”.
This distinction determines the measure of damages between the two torts. Date-Bah, JSC put it in the YUNGDONG INDUSTRIES case thus: ‘the normal measure of damages conversion is the value of the goods converted, together with any consequential loss which is not remote. In contrast, the normal measure of damages for detinue, which lays emphasis on the return of the goods is the loss arising through the detention of the goods, in addition to the value of the goods, where the court has not ordered their return’
Advantage of detinue over conversion Advantage of detinue over conversion may be summarised thus:
(i) The plaintiff can sue in detinue, even though the goods are no longer in the
possession of defendant;
(ii) the plaintiff can obtain specific restitution of his goods in detinue (important when, the article is of symbolic significance);
(iii)the plaintiff is entitled to the value of the goods as at the time of judgment (can take account of inflation).
(iv)damage for loss of goods can also be claimed by the plaintiff separately from the value of the goods.
Advantage of conversion over detinue:
Where the goods depreciate in value, it will be wise to sue in conversion so as to claim value as at the date of the conversion.