Introduction
The law provides a series of actions for the protection of chattels against intentional interference. These actions can be fully understood in the context of the days when formalism and fiction filled the law — through the forms of action. For as Salmond said, the “forms of action are dead but their ghosts still haunt the precincts of the law.”
As Dixon J said, in Penfolds Wines Proprietary Ltd v. Elliott in English, (as well as Ghanaian) law, what amounts to an infringement upon the possessory and proprietary rights of the owner of a chattel is a question still governed by categories of specific wrongs.
These categories are:
a) trespass de bonis asportatis (trespass to chattels, goods, personalty or moveable property);
b) conversion;
c) detinue (abolished in England since 1977)
d) replevin; and
e) innominate injury to the possession of another for which there existed a special action on the case for the protection of reversionary interests.
Detinue was the oldest, being a retinue of the old writ of debt. The writ of trover which is an antecedent of conversion is an action on the case and was developed as a result of the inadequacy of debt or detinue action which could be side-stepped by wager (compurgation) of law.
These two writs (trespass and detinue) left gaps in the law. The action on the case called trover was developed to fill these gaps. But, later, it was found so useful that it was developed to swallow the other two. Thus, today, in the case of minor interferences, the action available is that of trespass “de bonis.” Whereas major interferences are met with conversion. Conversion, therefore, has become the chief method for protecting chattels from intentional interference. Let us now consider seriatim the actions mentioned above by Dixon J.
Trespass to chattels (goods)
This tort is committed by intentionally or negligently interfering with a chattel in the possession of another. The interference must be direct. As Salmond puts it,4 the tort: “Consists in committing without lawful justification any act of direct physical interference with a chattel in the possession of another person.” See also Forson v. Koens.
The interference may be an act which brings the plaintiff’s body into contact with the chattel. Thus, it is a trespass to take away a chattel or to do willful damage to it. It is a trespass to lean against somebody’s car or to throw water at it. It is equally a trespass to hit somebody’s goat or to catch and take a feather off somebody’s hen.
It provides a wider cover of protection than conversion because a mere act of interference is sufficient and there is no need to prove special damage. You do not need to prove a denial of title either; that is, the interference need not be adverse to title. But it is narrower than conversion because of the requirement that the interference be direct. The defendant’s act must be the act which directly causes the trespass. So, for example, it is no trespass if the defendant puts poison in food for the plaintiff’s dog to consume and it does; or puts a barrier across a road into which the plaintiff drives his car. However, there is no reed for the plaintiff to come into contact with the chattel physically. For example, to throw a stone at a car is trespass.
In the earlier cases, trespass to chattels involved asportation or carrying off. Later, it was extended to cover situations where the chattel, though damaged, was not taken away. Finally, it was applied to any physical interference with chattel in the possession of another.
De bonis is now limited to intentional interference with chattel. For, while an action will lie for negligent interference which causes damage, this has been absolved into the general field of negligence actions.
It is actionable per se
The orthodox rule remains that this tort is actionable per se, that is, without any proof of actual damage. Any unauthorised touching or moving of a chattel is actionable at the suit of the possessor, even though no damage ensues (e.g. erase a tape-recording, show a letter to an unauthorised person.
However, a New Zealand judge has held that an intentional interference with a chattel without asportation is not actionable unless there is harm. The case is Everitt v. Martin. In that case the plaintiff, while alighting from his car in a car park, had his coat caught on the dilapidated fender of the defendant’s adjoining car. In an action for damages, the court found that the defendant was negligent in the sense that he, knowing his car’s condition, should have foreseen the likelihood of such an injury when parking his car in the heart of a big city. The defendant argued that the plaintiff had committed trespass, that is by allowing his coat to make contact with the defendant’s car! The judge held that there was no right of action in the case of merely accidental contacts, where no damage is done. He referred to Slater v. Swan.9 But it is doubtful whether the latter case really supported his position because it was an action on the case.
In Slater v. Swan, the plaintiff alleged, in an action on the case, that the defendant beat his horse violently and thus deprived him of its services for several days. The defendant demurred. The defendant alleged that the plaintiff had positioned his horse in such a way that a cart he had hired to take his goods could not come in. That he whipped the horse to remove it from there. Chief Justice Raymond ruled that, in an action on the case, there was no liability in the absence of special damage. He left it to the jury to decide whether the defendant had used more force than was necessary to remove the horse and cart from his door. The jury found for the defendant. Chief Justice Raymond said that “if a hackney coach stands before a tradesman’s door and hinders customers, he may lawfully take hold of the horses and lead them away, and is not bound to take his remedy for damages.” The taking of the horse would be justified because of the obstruction. Secondly, there was no liability because the force involved in the taking was reasonable and therefore did not constitute damage in law.
Besides, there is continuing authority for the orthodox view that trespass to chattels, like all trespasses, is actionable per sc. The case is William Leiich v. Leydon. Here the appellants were manufacturers of mineral water. They sold these beverages to customers in bottles embossed with their name and took steps to ensure that the property in the bottles remained with them. The respondent dealt in aerated waters. In addition to the bottled ones, he had installed in his shop a soda fountain. He made no inquiry of his customers as to their ownership of the receptacles provided, and made no examination of the receptacles beyond seeing that they were sufficiently clean to receive the drink. The appellants brought the action for suspension and interdict against the respondent for the use of their bottles. It was held that the respondent was under no duty to examine the bottles before filling them or inquire into their history and therefore the appellants were not entitled to interdict*. (In this case there were clear statements supporting the actionable per se position). See also Fouldes v. Willoughby ” where it was held that the slightest touching of a chattel is actionable as trespass. However, it seems clear from a close reading of the cases that the question of actionability is determined by policy considerations.
In favour of a policy of actionability per se, we may argue that there is a genuine claim by people to have no interference with certain types of property. For example, if I leave my toothbrush and you use it, you may not damage it or do any harm to the brush but I may never use it again. Or underwear taken from drying line and worn!! Or, a man comes to sit in your car and refuses to leave when you ask him, but insists on a lift. He may cause no harm to the seat. But if you evict him, even reasonably, he might be able to sue you for battery unless you can set up his trespass against him. So trespass must be actionable per se.
Against such a policy, it may be argued that there is no sound reason for according protection to non-harmful contacts with chattels. Too much premium should not be placed on property. Contacts with chattels should not evoke the same emotive feelings for the necessity of protection as trespasses to the person. These are serious arguments especially if we remember that it was held in Fouldes v. Willoughby that the slightest touching Of a chattel is actionable as trespass.
To put the matter to rest, it may be helpful to remind ourselves of what Latham CJ. said in the Penfold Wines case: “A mere taking or asportation of a chattel may be a trespass without the infliction of any material damage. The handling of a chattel without authority is a trespass… Unauthorised user of goods is a trespass; unauthorised acts of riding a horse, driving a motor car, using a bottler are all equally trespasses, even though the horse may be returned unharmed or car unwrecked or the bottle unbroken.”
Relationship between person suing and the chattel interfered with
This tort primarily protects possession not ownership. An owner out of possession can, therefore, generally speaking, not sue in trespass. The rule is that the defendant’s act must disturb the plaintiff in his possession of the chattel. Thus in Ward v. Macauley, the plaintiff was the landlord of a house which he let ready furnished to Lord Montfort. In levying execution against Lord Montfort, the defendant, Sheriff of Middlesex, seized part of the furniture although he was told it belonged to the plaintiff. The plaintiff brought an action for trespass against the defendant. At the trial, Lord Kcnyon, C.J. thought trespass could not lie and that perhaps Trover; however judgment was given for the plaintiff for the value of the goods with liberty for the defendant to move to enter nonsuit.
In the words of Lord Ken yon C.J: “The distinction between Trespass and Trover is well settled: the former is founded on possession; the latter on property. Here plaintiff had no possession; his remedy was by Trover founded on his property in the goods taken. …” So no trespass.
Thus, to succeed, the plaintiff must prove that he was in possession of the chattel at the lime of the interference; that is, either that the chattel was within his control by way of physical grasp or otherwise. For example, A leaves his goods in his house and goes to work. He is, in law, still in possession of the car B leaves things in his car which he parks in the car park in front of the University Bookshop. He is still in possession of the car and its contents.
This principle of possession is important, particularly for rural communities in Ghana as illustrated by the decision in Hamps v. Darby The defendant was a farmer who, on the crucial date, had a crop of valuable peas on his farm-. The plaintiff kept racing pigeons as a hobby. He released them daily for exercise and they usually returned after 15 to 20 minutes. On the crucial day, he released nine birds which settled on and did serious damage to the defendant’s crops. After shouting unsuccessfully to drive them away, the defendant took his gun and without first firing a warning shot, shot at the pigeons killing 4 and injuring a fifth. The plaintiff brought an action in the county court and the judge awarded him £200 damages. The defendant appealed. The appeal was dismissed per Greene M.R. and Evershed L.J.
The court held inter alia:
(1) “… the owner of tamed or reclaimed pigeons continues to have property in and possession of his birds after they have flown from his dove-cote, so long as the birds retain an animus revertendi to his control.
(2) No Justification proved because plaintiff did not establish that shooting them was the only thing he could do. The onus was on him to justify the shooting.” So an action in trespass can be maintained by the plaintiff.
Reference can also be made to the decision in the Winkfield. ‘ This was an appeal from the order of a lower court presided over by Sir Francis Jeune dismissing a motion made on behalf of the Postmaster-General. On April 5, 1900, there occurred a collision between the steamship, The Mexican and the Winkfield. The Mexican was sank as a result of the collision. The owners of the Winkfield under a decree limiting liability to £32,514 17s. lOd. paid that amount into court. The Postmaster-General on behalf of himself and the Postmasters-General of the Cape Colony and Natal claimed, inter alia, to recover from that sum the value of letters, parcels etc. in his custody as bailee and lost on board The Mexican. It was agreed by all the parties that the claim was one by a bailee who was under no liability to his bailor for the loss in question, the legal position of which was settled by Claridge’s case. ‘ On the authority of that case, therefore, the court dismissed the claim. On appeal it was held by the Court of Appeal (Collins M.R., Stirling and Matthew L.J J concurring) that the bailee in possession can recover the value of goods, although he will have a perfect defence to an action by the bailor for damages for the loss of the thing bailed, in an action against a stranger for loss of goods caused by the stranger’s negligence; that is possession is good against a stranger whatever the rights arc between the bailor and the bailee.
There seems no requirement in trespass that the possession should be lawful. It may well be therefore that, as against a stranger, a thief of a chattel may bring an action for trespass to it. This point may be illustrated with the case of Wilson v. Lombank Ltd. The plaintiff bought a car from A who had no title to sell. Apparently, the defendants had also bought the same car at one time. The plaintiff took the car to a garage for repairs. A representative of the defendants took the car away when the repairs were finished. And, when they discovered it belonged to someone else, delivered it to the true owner. The plaintiff brought this action for damages for trespass claiming the full value he had paid as well as the cost of the repairs. Judge Hinchcliffe said he was entitled to succeed because he had possession though no title “because he had a right to immediate possession as well as possession.”
Where you sell goods upon a judgment as a judgment creditor, you have to prove the judgment upon an action for trespass. This was decided in White v. Morris. In this case one Robinson who had earned on business as a draper at Sunderland became insolvent. He assigned all his household furniture and stock in trade to trustees for the benefit of his creditors. The trustees took possession and sold the goods to Robinson and one Story the latter paying for them partly in money and partly by bills. When the bills became due, and Story could not meet them, the present plaintiff, White, agreed to lend Robinson and Story £120 with the goods in question as security. The goods were accordingly assigned to White. By the deed of assignment, Robinson and Story covenanted to pay White the £120 on a given day with interest and assigned to White all the goods in a certain shop and dwelling place (in respect of which this action was brought), to hold the goods and premises assigned until payment of the money and with a power to White to sell upon default in payment.
Morrison, Gibson and Wheatley who were manufacturers at Manchester were creditors of Robinson at the time of the first assignment. They declined to concur in that assignment and after the trustees had sold the property to Robinson and Story they sued Robinson in the Sunderland county court and obtained judgment against him.
Taylor and Thompson executed this judgment and sold the goods. The only evidence of the seizure and sale was, the production of the writ of mandate directed to them with the indorsement of the high bailiff.
In an action by the plaintiff for damages to the goods, it was held that “when goods are assigned as security for an advance of money, upon trust to permit the assignor to remain in possession of them until default in payment at the time stipulated … the assignee has a sufficient possession to enable him maintain trespass against a wrongdoer.” The judgment creditor in the circumstances has to prove the judgment.
The following exceptions to this rule on possession may be noted
1. Trustees are allowed to sue for trespass to chattels in the hands of beneficiaries.
2. The title of personal representatives (administrators and executors) is treated by the law as relating back to the time of death of the deceased and they are allowed to sue for interference in the estate of the deceased which occurred before probate or letters of administration.
3. In a bailment for a fixed term, the bailor has no possession. But, in a bailment at will, both bailor and bailee can sue third parties although physically the goods interfered with are in the hands of the bailee. For bailment for a fixed term, only the bailee can sue. The bailee can sue for full value of the chattel, although there is a legal duty on him to hand over that part of the damages that is over and above his interest, as was noted in The Winkfield.
4. The owner of a franchise which entitles him to goods can bring an action in trespass in respect of interference with the goods before he has actually taken control of them.
Measure of damages
Where he is deprived completely, a plaintiff is entitled to recover full value of the chattel. The plaintiff who is successful in an action for partial damage is entitled to actual damage, i.e. partial.
Requisite mental requirement
The law is that, for trespass to goods, it must be shown that the interference was deliberately or intentionally made. The best authority on the mental state required by law for an action in trespass to chattels is National Coal Board v. Evans. An electrical cable had been placed under the land of a county council by the plaintiffs or their predecessors without the knowledge of the owners-of the land. The council contracted with the first defendants to excavate a trench on this land, handing to them a plan which did not the cable. The first defendants sub-contracted with the second defendant to excavate the trench; and their driver, in the course of doing so with a mechanical excavator damaged the cable. The plaintiffs brought an action in trespass against both defendants and obtained judgment. The defendants appealed.
It was held by the Court of Appeal (Cohen, Simpleton and Morris L.JJ) that the appeal must be allowed. There was no liability in trespass, since the act was involuntary and accidental. The defendants were utterly blameless. The injury was, in the main, attributable to the plaintiffs or their predecessors, who had committed trespass by placing their cable under the land county council without their knowledge or consent. By “not intentional”, in the above case, we must understand that the court meant that the driver did not deliberately trespass to the cable.
Halaby v. Halaby is also useful on this point. The plaintiff was an agent for the firm Halaby Brothers. In 1957, the West African Court of Appeal ordered the partnership properties to be sold. The defendants went to Nandom to carry out the sale. They found all the goods had been removed from the firm’s store. Upon inquiry, they discovered the goods and a safe belonging to the firm in a store which the plaintiff claimed to be his. They sold the goods and took the safe to Kumasi where it was opened the registrar. Apparently some of the goods sold belonged to the plaintiff. He therefore brought an action for trespass and claimed £1,166 3s. 6d., the value of the good £200 in cash removed, he alleged, from the safe and £4,000 general damages. The was dismissed and the plaintiff appealed. It was held that the appeal must be dismissed. The trespass complained of was involuntary and accidental. The defendant cannot be held liable for any damage as such damage was largely attributable to the plaintiff fraudulent act in removing the firm’s goods into his own store. (Clear authority proposition that for there to be liability in trespass to goods the interference must have been intentional).
So the plaintiff in an action in trespass to chattels must prove that the defendant acted intentionally. If the interference resulted from negligent conduct, then the plaintiff should bring the action in the tort of negligence.