Author: Kiki

As humans, we enter into contracts every day whether knowingly or unknowingly. In fact, contracts are everywhere and they come in different forms, from buying a package of gum in a street to renting a house to paying the cabman to transport you from one location to a destination, etc our lives are permeated by contracts. Owing to this, the law basically sets out rules to follow anytime we are about to engage in contracts cum commercial transactions.

In any contract for the sale of goods, there is an implied condition on the part of the seller to possess a title in what he or she is about to sell. S.12(1) of the Sales of Goods Act (hereinafter referred as SGA) provides that: In a contract of sale, unless the circumstances of the contract are such as to show a different intention there is (i) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass.

Thus, a seller who has no title will obviously be in breach of this obligation. In Akoshile v Ogidan 1950 19 NLR 87, the plaintiff bought a stolen Vauxhall salon car, No. A6286, from the defendant for £340 and took possession of the car. The European who sold the car to the defendant was convicted of stealing the car and the police took the car from the plaintiff. The plaintiff brought an action to recover the money paid to the defendant upon the grounds that the defendant had no authority to sell the car. The Court held that it was a breach of section 12(1) of SGA and that the plaintiff was entitled to recover the money. See also Rowland v Divall [1923] 2 KB 500.

From these two cases, it is evident that just as it is impossible to build something on nothing and expect it to stand, it is also unthinkable to give out what you do not have. This informed the Latin maxim nemo dat quod non habet. This translates to mean you can not give what you do not have.

At this juncture, it is also important to note that the law envisages a situation where the seller who is the owner of the goods or who has been authorized by the seller to sell will not be permitted to. In other words, the true meaning of S.12 of SGA is that the seller must have the right to sell the goods indisputably without any legal constraint, otherwise, he has breached a condition that will amount to a repudiation (rejection) of the contract by the other party. Hence, in Niblett v Confectioners’ Material [1921] 3 KB 387, the plaintiff purchased 1,000 tins of condensed milk from the defendant. The tins were labeled ‘Nissly’. Nestle told the plaintiff that if they attempted to sell these on, they would apply for an injunction to prevent the sale as the label was very similar to Nestle’s labels for their condensed milk. The claimants agreed not to sell them and brought an action against the sellers. The court held the sellers did not have the right to sell the goods and therefore the buyers were entitled to repudiate the contract. In effect, a person who can sell goods only by infringing a trademark of another has no right to sell, even though he may be the owner of the goods. The effect of this is that the law places an obligation on a seller or his agent acting on his authority to always come through and true in transactions.

EXCEPTIONS TO THE NEMO DA QUOD. NON HABET RULE

Let’s imagine the aftermath of the man called Ogidan; the defendant in that case. Poor man!😥 The Court ordered him to refund the money despite the fact that he was not aware that the European whom he also got the car from stole the car. Well, as touching as it could be, the law is the law. Since he had a defective(fake) title, what he transferred was no title. The only way out for him, in that case, was also to institute an action against the European in order to recover his money. Unfortunately, most times the third parties in situations like this(in this case the European) will have absconded and even if they were found, they would have entered insolvency. Indeed, life no just balance😃.

Now, that was harsh. Hence, because of the apparent harshness of the rule, several exceptions to it were developed at common law and also have been added by statute. All of the exceptions will apply only in favour of a person who acquires the goods in good faith and without notice of the rights of the original owner. In simpler terms, it means it will favour those who got the goods without knowledge that the seller stole the goods.

The exceptions are Agency Arrangements; Estoppel; Sales in a Market Overt; Sale Under Special Powers; By a Mercantile Agent etc. Out of these exceptions, quick attention will be given to Sales in a Market Overt. An Overt Market is defined as an open, public, and legally constituted market where purchasers of goods with certain exceptions acquire good title regardless of any defects in the seller’s title. S.21(1) of SGA stated that “where goods are sold in market overt according to the usage of the market, the buyer: acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.”

To further illustrate this, a practical example will be given: Omotunde steals a bundle of cloths from Kofoworola and takes to Gbagi market to sell, If Omotunde sells those items at the usual market place of Gbagi within the working hours after displaying and Segun buy them, then the buyer acquires a valid title against that of the true owner (Kowoforola). Though the rule has been abolished in some countries like The United Kingdom, The United States of America, etc, it is still operative in some common law jurisdictions, for instance, Nigeria.

For a sale to constitute one in a market place, the following requirements must be met:
1. The sale must be made in the usual market place upon the lawful market day and during the hours and not at night.

2. The goods must be exposed for sale and the whole transaction must begin and conclude in the market. See Reid v. Metropolitan Police Commissioner (1973)2 AER 97 where the sale of stolen goods took place in a market overt in the morning when the sun had not risen and it was still only half-light. The court held that the goods should have been sold in day time when all who passed could see the goods.

3. The sale must be a real sale by a person of contractual capacity.

4. The goods must be goods sold normally in that market.

5. The buyer is not aware that the seller stole the goods and bought it in good faith.

When these conditions precedent are fulfilled, a buyer obtains a valid title from a non-owner seller through sale in market overt.

In conclusion, the doctrine of Nemo dat quod non habet, first off, aims at protecting the plaintiff who got a defective title while its exceptions provide a soft landing provision for a person who acquires the goods in good faith and without notice of the rights of the original owner.

Thank you for reading. See you next week.

Happy New Month. Stay blessed💝.

Under the Constitution of the Federal Republic of Nigeria 1999 (as amended), every person has Rights, including those persons accused of commission of any crime. To these sets of persons, S.36 of the Constitution has been the Constitutional haven as it clearly stipulates the safeguards to ensure a fair trial of the accused or defendant. Out of all these rights, our attention today will be on the doctrine of Double Jeopardy.

Double Jeopardy is a procedural defence which prevents an accused person from being tried again on the same or similar charges and on the same facts, following a valid acquittal or conviction of the first one. Gotten from the maxim non bis in idem, which translates literally as not twice against the same thing, double jeopardy prohibits a person being tried or punished twice for the same offence with the same set of facts.

S.36(9) of the Constitution provides thus: No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court. The rationale for this doctrine is the protection of the individual from the oppressive tendencies of the state, which, with its vast resources can perpetually deprive an individual his personal liberty through several frivolous trials. The doctrine is a universal concept in criminal law jurisprudence. This also received judicial pronouncement by Black J, of the Supreme Court of the United States in Green v United States (1957) 355 U.S 184, at 187-8.

However, before an accused person can raise the plea of autrefois acquit or autrefois convict, this plea must satisfy the following conditions:

1. The first trial of the accused person must have been on a criminal charge. In R v. Jinadu (1948) 12 WACA 368, the accused was a policeman who committed assault. He was first tried in the Police orderly room, acquitted but got demoted. Later, he was charged with assault under the Criminal code. His plea of autrefois convict was refused because the first trial was not a criminal trial but an administrative one. As such, the breach of a club or association or professional rule which carries sanctions would not qualify as a criminal offence.

2. The first trial of the accused person must be by a court of competent jurisdiction. For example, a murder case cannot be tried in a magistrate court because the court does not have jurisdiction. Hence, In Umeze v. The State (1973) 6 SC 221, the conviction of the appellant was set aside by the Supreme Court when it was shown that the Magistrate who conducted the committal proceeding was not competent to do so. As such, the plea of autrefois acquit was not available. See also Chief of Air Staff v. Iyen

3. The first trial of the accused person must have ended with a conviction or an acquittal. If during the first trial, the Attorney General entered a nolle prosequi (I wish not to prosecute) and peradventure the case was continued by another Attorney General, the defense of autrefois convict will not be available since the first trial did not end in a conviction or an acquittal. See the case of Clarke v AG Lagos State (1986) 1 QLRN 119, where the accused persons were rearrested and arranged after the entry of nolle prosequi.

4. The offense for which the accused person is now charge must be:
(a) The same with the first offence for which he was tried or
(b) An offence for which the accused person could have been convicted at the first trial, although he was not changed with the offence.

Let us now imagine someone was acquitted and a few months later, a fresh evidence came in proving his culpability, can he still be tried? The Supreme Court in PML (Securities) CO. Ltd v. FRN (2018) LPELR-47993(SC) Per AUGIE, J.S.C gave the answer when he held thus: Suppose that a transgressor is charged and acquitted for lack of evidence, and evidence has now come to light showing beyond doubt that he committed the crime. Even so, he cannot be tried a second time. He has what is termed in legal Frenglish (sic), the defence of autrefois acquit. Similarly, if he is convicted, even though he is left off very lightly, he cannot afterwards be charged on fresh evidence, because he will have the defence of autrefois convict.

At this juncture, it is pertinent to note that there is a difference between an accused being discharged and being acquitted. A person who has been acquitted cannot be arrested for the same case in which he has been acquitted by the Court. A discharge does not bar the institution of fresh proceedings when new or better evidence becomes available against the accused. The effect of this is that for the plea of autrefois acquit or autrefois convict to be properly raised, the accused person must have been either acquitted or been convicted by a court of competent jurisdiction. Given this assertion judicial flavour, the court in Samson Umen Sunday v. The State (2017) LPELR-42140 (CA) opined that a person who is only discharged may be charged again for the same offence if some other testimony is discovered against him; however, a person who is acquitted of a charge can never be put on the trial for the same offence.

Other things to note about this doctrine are:
(a) It is only applicable in criminal cases but a similar doctrine called resjudicata exists in civil cases. See Suleiman v. FRN (2018) LPELR-46813(CA)

(b) The doctrine will not be available in this situation: let’s imagine James robbed two banks the same day in two different cities, Ibadan and Lagos. He was tried in Ibadan and convicted or acquitted, can he still be charged in Lagos? Yes, he can. The first thing we need to understand when it comes to this scenario is that there are TWO DIFFERENT OFFENCES here. The offences are as follows: 1. Armed robbery at a bank in Lagos. 2. Armed robbery at a bank in Ibadan. If he is apprehended and convicted in the High court of Oyo state, Ibadan just for the armed robbery in Ibadan, nothing stops him from being tried and convicted in the High court of Lagos for the armed robbery in Lagos because those are two offences and double jeopardy frowns against punishing for THE SAME OFFENCE twice.

Now, when it comes to criminal jurisdiction in cases where there are chain of actions (offences) that cut across different states for e.g Lagos, Oyo, Ogun, Ondo, etc, the defendant can be charged at ANY OF THE HIGH COURTS IN ALL THESE STATES. So in this instance, the robber can be charged in either the high court of Lagos or Oyo state on TWO separate counts in the same charge sheet. The plea of autrefois convict will now defend him if after being tried in either of the Courts (let us say Ibadan) on the two separate counts, they still proceed to charge him again for the robbery in Lagos.

(b) The doctrine is not without its exceptions. One of them is in accordance with the last phrase of S.36(9) of the Constitution which reads thus: save upon the order of a Superior Court.

(c) A defendant can be charged with two identical but separate crimes. If, for example, a defendant is acquitted of robbery a bank on March 13, the defendant can still be tried for robbery another bank on May 17. These incidents are viewed as separate crimes, so double jeopardy will not apply.

(d) If a defendant is tried for a criminal case, double jeopardy does not protect them from also being tried for a related offense in civil court. For instance, if the state brings murder charges against a defendant, the family of the victim may also sue the defendant for liquidated damages.

In conclusion, the whole doctrine could be summed up as ‘punish me once, my blame, punish me twice on the same issue, your blame.’

Thank you for reading. See you next week.✌