Some weeks ago, when the Supreme Court delivered its decision in
Haruna v. state (2018) 11 NWLR PT 1631,559, there was so much
excitement on social media, especially, from those who have been
victims of robbery in any form, as parents took the opportunity to
caution their kids and wards as the perceived punishment for the
purchase of fairly used phones according to the decision in Haruna
v. state is a death sentence.
It is apposite to state that in a third world economy like
Nigeria, buying of fairly used phones or items cannot be completely
ruled out as the cost of buying new phones or items are expensive
and cannot be afforded by many individuals.
The Decision of the Supreme Court in Haruna v. State (Supra) has
been largely misconstrued as it never pronounced a death sentence
on an accused person who purchased fairly used phone, rather the
death sentence was pronounced for the offence of Armed Robbery
pursuant to Section 1(2)(a) of the Robbery and Fire Arms Act.
In Haruna v. state, the appellant was charged at the High Court
for conspiracy to commit a felony to wit: Conspiracy to Kidnap,
Kidnapping, and Armed Robbery. The victim in the said case was
kidnapped and dispossessed of her mobile phone (blackberry) which
was later found on the appellant. The Supreme Court in its decision
relied on Section 167(a) of the Evidence Act 2011, which Provides
thus:
“(a) A man who is in
possession of stolen goods soon after the theft is either the thief
or has received the goods knowing them to be stolen, unless he can
account for his possession;”
Nowhere in the Judgment was it stated that the penalty for the
purchase of a fairly used phone is a death Sentence. The court only
placed reliance on the presumption that whoever is in possession of
stolen goods or proceeds of a crime immediately after they are
stolen or the act was done is either the thief or participated in
the crime, unless he can account for his possession.
Selling and purchasing of fairly used phones or items is a
healthy commercial practice sanctioned by Section 22 of the Sale of
Goods Act 1893, which provides thus:
- – (1) Where goods are sold in a 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.
The term Market Overt was defined in
Law Union and Rock Insurance v. Onuoha (1998) 6 NWLR PT
555, 576, 588, 589 Paras H-A as an open, public and
legally constituted market. The Court went further to state that
the doctrine of market overt is that all sale of goods made therein
are binding not only on parties but also on other persons, so that
if stolen goods are sold in a market overt, a purchaser in good
faith acquires a valid title to them against the true owner.
The Provisions of Section 21(1) of the Sale of Goods Act is an
exception to the rule in Nemo Dat Quod non Habet which is
due to the fact that the goods were purchased in good faith. By the
provisions of Section 64(2) of the Sale of Good Act, a thing is
deemed to be done in good faith within the meaning of the Act when
it is in fact done honestly whether it be done negligently or
not.
A sale in Market Overt does not destroy the true owner’s title
unless made openly between sunrise and sunset. See Law
Union and Rock Insurance v. Onuoha (Supra). It
therefore means that if a fairly used goods (Phone) bought at a
market overt is indicated to be proceeds of crime, the buyer of
such fairly used item or goods has a duty to give accurate account
on how the item or goods came into his possession. Where a thief is
convicted with respect to the said item, a restitution order has to
be made to divest the buyer of such stolen item purchased at a
market overt of his title. The remedy open to such an individual is
to institute an action against the seller claiming damages.
It is also necessary to note that until there is a conviction
with respect to the stolen goods, the buyer of such goods at a
market overt remains the true owner. In situations where the
criminal charge is struck out for want of diligent prosecution or
on technical grounds, such an item should be returned back to the
owner who purchased from a market overt as he has a valid title. It
therefore means that the practice where officers of the Nigerian
police force hold unto goods or items perpetually on the basis that
they are proceeds of a crime is illegal and an infringement of the
proprietary rights of such individual who purchased such item or
goods from a market overt.
In conclusion, it is suggested that where goods purchased from a
market overt are confiscated as a result of police investigation,
such goods should not be kept by the police for a long period of
time pending trial except an order of court is first sought and
obtained.
ONOME JESSE NWOSE (Esq),
Jnwose2@gmail.com
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Related
FG Worries Over Environmental Damage in
Niger-Delta
The Minister of Niger Delta Affairs, Dr. Usani Uguru Usani has
expressed worries over the negative impacts of environmental
discontent in the Niger Delta region, saying it has informed the
Ministry’s decision to streamline Environmental Policy Action in
the region.
Usani expressed this concern at a One-day Stakeholders Validation
Workshop and launching of a draft document on Niger Delta Region
Climate Change Programme and Action Plan (NDRCCP-AP) organised by
the Ministry Of Niger Delta Affairs in Calabar, Cross River State,
on Thursday.
“The purpose of this programme is to streamline Environmental
Policy Action in the Niger Delta which are traceable to the impact
of environmental discontents such as the flooding that is ravaging
the reverine communities, the prevalence of cancer-related
ailments, the radio-active ailments, as well as the soot that is in
the atmosphere, especially in Rivers state,” the Minister
emphasised.
The Minister decried a situation where communities in the Niger
Delta region were being submerged by flood while little or no
action is being taken to address the trend.
He called on relevant stakeholders to urgently device means of
addressing environmental disaster that demands emergency in
Nigeria, especially in the Niger Delta region, stating that all
human activities are impacted as a result of climate change in the
Niger Delta region.
Dr. Usani reiterated the need to “Carry out sensitization on
climate change so that people will know the effect of what they go
through and also that investors and economic moguls would
discontinue harping on our ignorance while they make economic
fortunes.”
The Minister promised his Ministry’s determination to perfect the
draft climate change programme document in a bid to make it a
worthy document that will guide all actions that are aimed at
addressing environmental disasters in the Niger Delta region.
Earlier, the Permanent Secretary in the Ministry of Niger Delta
Affairs, Aliyu Aminu Bisalla noted that Climate Change and global
warming posed serious challenges to the Niger Delta region.
He added that the pace of change was increasing, saying “Unless the
trend is reversed, human and physical ecologies are bound to be
seriously impacted as it is being observed at the moment in many
parts of the Niger Delta region.”
In his words at the event, the Amayanabo of Twon Brass and the
Chairman, Council of Traditional Rulers in Bayelsa State, His Royal
Highness, King Alfred Diette Spiff, charged the people in the
coastal communities in the Niger Delta region to take necessary
measures to guard against more negative effects of climate change
and global warming in the near future.
Corroborating his colleague from Bayelsa, the Paramount Ruler of of
Bakassi and Chairman, Council of Traditional Rulers in Cross River
State, His Royal Highness, Dr. Etim Okon Edet, thanked the Federal
Government for its development efforts in the Niger Delta
region.
He advised that the Ministry of Niger Delta Affairs should
inaugurate the completed Housing project in Bakassi to the
beneficiaries to address their housing need and expedite action on
the completion of the Skills acquisition Centre in Akpabuyo in
Cross River State.