This article is a follow-up to the one last week [see here] which highlighted the necessity for a home-grown Sale of Goods Act being made for Nigeria. In this and subsequent articles on the Sale of Goods Act, we shall discuss some of the reforms to the Sale of Goods Act which are expected to be in any statute to be enacted to replace the Sale of Goods Act 1893.
It is a fundamental principle in law that one cannot give what he does not have. This is often expressed in the Latin maxim thus: nemo dat quod non habet. This principle is statutorily provided for in section 21(1) of the Sale of Goods Act 1893 which states thus: “Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.”
However, the Sale of Goods Act 1893 provides several exceptions to this rule. One of such exceptions is sale in market overt which is provided for in section 22(1). According to the subsection, “[w]here 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.”
This archaic market overt doctrine in the Sale of Goods Act 1893 is still applicable in Nigeria. The reform of the Sale of Goods Act in Nigeria should necessarily entail the abolition of the doctrine in Nigeria. The reasons for this proposal are legion. In the first place, the doctrine is no longer in force in the United Kingdom having been abolished nearly two decades ago. Secondly, the circumstances of the doctrine are not applicable in Nigeria. Historically, market overt was an English legal concept which originated in mediaeval times and governed the subsequent ownership of stolen goods. Generally, the sale of stolen goods is not enough to convey effective title. However, under the market overt principle, where goods were openly sold in designated markets between sunrise and sunset, provenance could not be questioned and effective title of ownership was obtained. It is on record that this principle originated centuries ago when people did not travel. The rationale being that if the victim of a theft did not bother to look in his local market on market day (the only place where the goods were likely to be) he was deemed not to have been reasonably diligent in his efforts towards the recovery of his stolen goods. In mediaeval times, perhaps this made sense, but not any more in modern times. Thirdly, it is difficult to determine what would constitute a market overt today, given the spread and nature of modern buying and selling and the cosmopolitan nature of modern society. Fourthly, the advancement in information technology which has enhanced communication and commercial activities between people in far flung locations complicates the whole issue. Would sale over the internet be deemed to be sale in a market overt? Fourthly, this obnoxious principle which seems to allow a common criminal benefit from the proceeds of his criminal enterprise can potentially promote criminal enterprise to the detriment of the well-being of the society. Finally, it is noteworthy that the doctrine has been abolished in some other jurisdictions in which the Sale of Goods Act 1893 was the foundation of their sale of goods legislation, such as New Zealand.
In consequence of the above, it is contended that the market overt doctrine has outlived its usefulness. And being also inconsistent with modern developments, it has no place in any contemporary, forward-looking legislation. The reform of the Sale of Goods Act in Nigeria should necessarily include its abolition.
Next week, we shall discuss another issue which is germane to the reform of the Sale of Goods Act in Nigeria. But should you have any comments on the proposal for the abolition of the market overt principle, kindly share them using the comments area of this post below. If you are already a registered user, you will be required to log in to comment on this post; otherwise, you will have to register before posting your comment. Registration is simple and FREE.