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