de Comarmond, Ag. C.J. The plaintiff (now respondent) bought a motor-lorry in 1949 and registered it in his name. Part of the purchase price of the lorry (£200) was advanced by the defendant Company (now appellant) to plaintiff. The plaintiff was at the time engaged in transporting and delivering logs to the defendant Company. When the money was advanced to him by the defendant Company, the plaintiff wrote to the Company stating that the lorry would be “under lien “ to the Company until repayment of the £200 either in cash or by the delivery of logs.
On the 24th January, 1950, the defendant Company took possession of the lorry without the plaintiff's consent. The lorry was at the time loaded with a log and, according to plaintiff, also carried a six-ton jack worth £9, a set of spanners worth £5 and a pump worth £2 10s. 0d.
The Company thought that it had the right to detain the lorry by virtue of the supposed lien as security for the debt owed by the plaintiff. That this was to an error was freely admitted by Mr. F. R. A. Williams who argued the appeal on behalf of the Company (the appellant) The taking of the lorry by the Company was undoubtedly unlawful and when the Company refused to return the lorry to the plaintiff on demand being made it became abundantly clear that the detention was also unlawful. The plaintiff caused a writ of summons to be issued against defendant claiming:-
(1) the return of the lorry, the log, the jack and the tools or in the alternative the value thereof which was alleged to total £376 10s. 0d., and
(2) special damages up to date of judgment for loss of earnings occasioned by the detention of the lorry and £100 general damages.
It is clear from the writ of summons that the plaintiff was not seeking redress for the wrongful taking of his lorry and did not allege that the defendant had converted the lorry and other articles to its own use.
The chief difficulty in the case arises from the fact that although the lorry was being unlawfully detained by the defendant when the writ was filed in February, 1950, yet it was no longer in defendant's possession when the statement of claim was filed on the 13th May, 1950. What happened was that on the 1st May, 1950, he police acting under an order given by the Magistrate at Ibadan had taken he lorry away. The order (exhibit 4) shows that the plaintiff had to answer charges of forgery and of obtaining goods by false pretences and that the lorry was for some reason wanted as an exhibit.
It was conceded by Mr. M. A. O. Williams, who represented the plaintiff- respondent before this Court, that the police would have taken the lorry away even if it had been in plaintiff-respondent’s possession on the 1st May.
I am of opinion that the action taken by the police put an end to the unlawful detention of the lorry by the defendant-appellant.
It is to be noted that the defendant-appellant did not attempt to claim ownership of the lorry in his statement of defence. In paragraph 5 thereof, there was an averment that the so-called lien held by the Company justified the taking of the lorry for the protection of the Company’s interests, and in paragraphs 6 and 7 of the statement of defence reference was made to the fact that the police and taken the lorry away.
The learned trial Judge gave judgment for plaintiff for the return of the lorry in good working order within 15 days or payment of its value (£300); also for the return within the same period of the jack and tools mentioned in the writ of summons or, in default, the value thereof as set out in the writ; and finally, he granted £25 general damages for the wrongful detention of the lorry, and £42 special damages calculated at 30s. per day from the beginning of the period of detention to the dated of filing of the writ.
The main ground of appeal argued before this Court was that the Court below should not have ordered the return of the lorry which was no longer in appellant’s possession and which had ceased to be in his possession through no voluntary or wrongful act of his own.
I am of opinion that in the circumstances of this case the appellant must succeed on this ground Had the appellant disposed of the lorry while it was in his possession as if he was the owner thereof, the respondent would have had good ground for claiming damages for the conversion of his property by the appellant.
As already pointed out, the respondent did not allege conversion.
At the hearing of the appeal this Court was informed by Counsel that the lorry is still with the police at Ibadan although the matter in connection with which it was wanted as an exhibit has been concluded. This Court was also informed that no direction had been given by the Magistrate as to the person to whom the lorry should be returned. Mr. F. R. A. Williams for the defendant-appellant submitted that the appellant could not claim the lorry from the police use it is not disputed that it is respondent’s property. Being given that Counsel for the respondent has conceded that the lorry would have been taken to Ibadan even if it had been in respondent’s possession on the 1st May, 1950, it seems to me that it is for the respondent to take delivery of his property from police.
As regards the log, jack and tools which the plaintiff claimed, appellant’s Counsel submitted that evidence was given by his client’s clerk that respondent’s driver had taken a jack, a pump and some clothing from the lorry before it was taken away by the appellant’s servants. The learned trial Judge pointed out that there had been no denial in the statement of defence regarding the presence of the log and other objects in the lorry and that the appellant had to bear responsibility for the disappearance of these articles. I consider that the learned Judge was right.
The appellant therefore succeeds on the first ground of appeal substitute for the original grounds, namely, that the learned trial Judge erred in law in giving judgment to the Plaintiff for the return of the lorry or its assessed value. appeal fail. All the other grounds appeal fail.
Mr. F. R. A. Williams, for the appellant, stated he was agreeable that the special damages granted Court below be increased so as to cover the period up to the taking away of the lorry by the police, that is up to the end of April, 1950. This would raise the special damages to £145 10s 0d.
I am therefore of opinion that the appeal should be allowed and the judgment of the Court below altered to read: “Judgment for plaintiff for one hundred and forty-five pounds ten shillings (£145 10s. 0d.) special damages and twenty-five pounds £25) general damages; defendant to return to the plaintiff within fifteen days plaintiff six-ton jack, set of spanners, foot pump and one Antiarls log which were on plaintiff lorry on the 24th January, 1950, or in default to pay £9, £5 £2 10s. 0d. and £10 respectively within the same period. There defendant to pay the plaintiff costs assessed at twenty-five (25) guineas.
Foster-Sutton, P. I concur. Coussey, J.A. I concur.
Appeal allowed on one point.