The Legal Maxim Nemo dat quod non habet – No One Gives What They Do Not Have

By P.L Osakwe
■ Introduction

The Latin maxim nemo dat quod non habet is one of the cornerstones of property law, particularly in the context of transfer of title and ownership. Translating to "no one gives what they do not have," this doctrine is based on the principle that a person who does not possess ownership rights to a property cannot transfer those rights to another. This article delves into the legal foundations, applications, exceptions, and implications of this principle in property law, with a focus on its operation in Nigerian jurisprudence and comparative jurisdictions.

I. Legal Foundation of Nemo Dat Quod Non Habet
The nemo dat rule has deep roots in common law. It underlines the importance of ownership and lawful possession as a prerequisite to valid transfer of title. The rationale behind the maxim is to protect the true owner's rights and to prevent the law from legitimizing theft, fraud, or unauthorized dealings with property.

Under Nigerian law, the principle is reflected in:
The Sale of Goods Act (1893) (as applicable in some states)
Section 27 of the Nigerian Sale of Goods Law (in jurisdictions that have adopted it)

■ Common law doctrines as preserved under the Interpretation Act.

The rule essentially holds that a person who is not the owner of goods, and does not sell them with the authority or consent of the owner, cannot pass a better title than he himself possesses.

II. Application of Nemo Dat in Real Property
While the maxim is most frequently associated with chattel or personal property, its application in real property transactions is no less important. For example:
A tenant or licensee of land cannot transfer ownership of the land.
A person occupying land without title cannot validly sell the land or lease it for any binding legal interest.
Purchasers must ensure that the seller has good title, often via investigation of the chain of title and property registry.

In land law, the maxim supports the idea that:
"A person cannot give a better title to land than he himself possesses."

III. Nigerian Case Law on Nemo Dat
Nigerian courts have repeatedly upheld the nemo dat rule. Notable decisions include:

Okonkwo v. Cooperative & Commerce Bank (2003) 8 NWLR (Pt. 822) 347: The Supreme Court held that the bank, having accepted a forged title as security for a loan, could not acquire any title better than that of the fraudster.

Idundun v. Okumagba (1976) 9-10 SC 227: This case emphasized that in a land transaction, only someone with a valid root of title can transfer legal ownership.

Adebayo v. Ighodalo (1996) 5 NWLR (Pt. 450) 507: The Court stated that where a person fraudulently sells land he does not own, the buyer acquires no legal interest.

IV. Exceptions to Nemo Dat
While the rule is clear and strict, several exceptions have developed in law to temper its rigidity and provide protection to bona fide third parties:

1. Sale under Authority (e.g., Agency):
If the original owner has given someone the authority to sell (such as an agent), then title can validly pass.

2. Estoppel:
If the true owner’s conduct has led a buyer to believe that the seller had the authority to sell, the owner may be estopped from denying the seller’s authority.
Example: Leaving property in possession of another without safeguards.

3. Market Overt (now obsolete in many places):
At common law, goods sold in open markets could sometimes pass good title despite defects, but this principle is no longer widely accepted.

4. Sale by a Mercantile Agent:
Under the Sale of Goods Act, a bona fide buyer purchasing from a mercantile agent acting within his authority and possession can obtain good title.

5. Voidable Title:
Where a seller obtained title through fraud, and sells the goods before the title is rescinded, the buyer may obtain good title if acting in good faith.

6. Statutory Exceptions:
Under Nigerian laws such as the Land Use Act, transfers by certain bodies (e.g., Governors or Local Governments) may pass valid title regardless of previous ownership, particularly in compulsory acquisition or allocation scenarios.

V. Comparative Analysis
■ United Kingdom
The nemo dat rule is codified in the Sale of Goods Act 1979, but tempered with consumer protection laws. English courts are more inclined to protect innocent purchasers than in Nigeria.

■ United States
The Uniform Commercial Code (UCC) provides significant protections to good faith purchasers, particularly in the context of commercial transactions.

■ South Africa
A mixed legal system influenced by Roman-Dutch law, South Africa maintains a stricter application of nemo dat, emphasizing registration of title in property law.

VI. Practical Implications
■ Due Diligence
Buyers must perform due diligence before acquiring property. This includes:
° Investigating title documents
° Verifying identities
°Searching government registries

□ Visiting the property
■ Title Insurance
In many jurisdictions, title insurance is used to mitigate the risks posed by the nemo dat principle, although this is not yet widely practiced in Nigeria.
■ Legal Education
Lawyers must ensure clients understand the risks of informal transactions and encourage compliance with due process.

VII. Criticism of Nemo Dat Rule

° While the nemo dat rule protects ownership, it has been criticized for:
° Harshness towards innocent third-party buyers
° Encouraging underground transactions to bypass legal scrutiny.
° Causing uncertainty in land markets where informal transfers are common (e.g., family lands, customary land).

Scholars argue for reforms that strike a balance between the integrity of ownership and the commercial need for certainty.

VIII. Relevance in Modern Nigerian Practice.

In Nigeria, the nemo dat principle is particularly important due to the prevalence of land fraud, informal markets, and title forgery. However, courts also increasingly consider equity, estoppel, and the need to protect bona fide purchasers.

■Conclusion

The maxim nemo dat quod non habet remains a vital principle in property law, ensuring that property rights are respected and transfers of ownership are legitimate. However, exceptions based on equity, statutory authority, and policy considerations allow some flexibility. For Nigerian practitioners, the maxim is both a shield and a sword: a shield to protect rightful owners, and a sword to defeat fraudulent claims.