A: Replevin is a remedy that enables a tenant to recover possession of goods, which have been illegally distrained. This is further elucidated in Sealandaire Ltd v Paul (1994) High Court, No 169 of 1994
The remedy consists of two parts:
1. the replevy, whereby the tenant obtains re-delivery of the goods; and
2. the action of replevin, in which the validity or otherwise of the distree is determined.
Replevin is ONLY available where the distress was illegal, not where it was excessive or irregular. Illegal distress that can give rise to replevin are:
(a) where no rent was due
(b) where there was no demise at a fixed rent
(c) as in Selandaire, where the landlord/tenant relationship was terminated before the distress was levied
Excessessive distress occurs where more goods are seized than are reasonably necessary to satisfy the arrears of rent and proper charges of the distress.
Carter v Carter (1829) 130 ER 1118
Irregular distress occurs where, although there was a right of distress, a wrongful act was committed at some stage of the proceedings, subsequent to the seizure.
Op cit, Atkin’s Court Forms, fn 121
This remedy can be excercised at any time before the sale of goods. However, according to Warner J in Cornwall v Trincity Commercial Centre Ltd (1996) High Court, No 1437 of 1995, under s 11 of the Landlord and Tenant Ordinance of Trinidad and Tobago, the distrainor is empowered to sell the distrained goods if replevy is not made within five days.
If the claimant is successful, he will NOT be entitled to damages for the value of the goods if they were returned to him when the replevy was made, BUT may recover general damages annoyance and for injury to trade/credit/reputation. Smith v Enright -1893- 63 LJQB 220
For more information on Replevin, please read Commonwealth Caribbean Property Law by Gilbert Kodilinye