NEMO DAT QUOD HABET: NO ONE GIVES WHAT HE DOES ...

WRITTEN AND COMPILED BY ESSAYS NG: WWW.ESSAYSNG.COM

NEMO DAT QUOD HABET: NO ONE GIVES WHAT HE DOES NOT HAVE.



ACCUSARE NEMO SE DEBET [NSI CORAM DEO]: NO ONE OUGHT TO ACCUSE HIMSELF

[EXCEPT TO GOD].

Also called the ‘right against self-incrimination’.

Similar to ‘Nemo tenetur seipsum accusare’.

An accused is fully entitled to plead ‘not guilty’ whatever the facts may be.

A witness may refuse to answer questions on the ground that a reply might

incriminate him.

A confession is not admissible unless it is made freely and voluntarily. It must

not be induced through promise or threat.

See R v Lagos, Miranda v Arizona and Mapp v Ohio.

ACTA EXTERIORA INDICANT SECRETA INTERIORA: THE OUTWARD ACTS SHOW THE

SECRET INTENTIONS.

This involves the ascertainment of someone’s subjective interest/purpose

motivating his/her actions, by considering what the immediate, proximate and

reasonably to be anticipated consequences of such actions are and to reason

that the person intends to accomplish them.

‘Facta non verba’ – actions speak louder than voice.

ACTIO PERSONALIS MORITUR CUM PERSONA: ANY RIGHT OF ACTION DIES WITH THE

PERSON.

It applies to actions in form of ‘ex delicto’. ‘Delict’ meaning wrong/injury done to

someone.

It is a common law rule which states that ‘if an injury were done either to the

person or to the property of another for which damages only could be recovered

in satisfaction, the action died with the person to whom or by whom the wrong

was done.

In case of injury to the person, if either party dies, no action can be supported

either by or against the executors or other representatives.



Thus, going by this maxim, it would be better for a motorist to kill rather than

merely injure a pedestrian who is unemployed, unmarried, childless and an

orphan.

The relevance of this principle has been substantially removed by statutes which

allow a deceased’s estate to pursue the litigation.

It does not apply to personal action founded on contract.

It now seems to be generally confined to ‘defamation’.

See Phillip v Homfray, Ayodele v Ore and Kareem v Wema Bank Ltd.

ACTORE NON PROBANTE, ABSOLVITUR REUS: AN ACTION NOT PROVED, ABSOLVES

THE GUILTY.

When the plaintiff/prosecution does not prove his case, judgment is for the

defendant/accused.

The same principle applies to an appellant if the judges are equally divided in

their decisions.

See Famuroti v Agbeke and Awomuti v Salami.

ACTUS DEI NEMINI FACIT INJURIAM: AN ACT OF GOD CAUSES LEGAL INJURY TO NO

ONE.

‘The law holds no man responsible for the act of God’ ~Herbert Broom.

The loss from an injury caused thereby must be borne by the victim.

It refers to an injury, inevitable as a result of an act of God, which no industry

can avoid or policy prevent.

Supposing a storm causes Mr A’s car to land on, thereby damaging Mr B’s house,

Mr B cannot claim damages from Mr A.

See Omotayo v Arbuckie Smith & Co. Ltd.

ACTUS NON FACIT REUM, NISI MENS SIT REA: AN ACT DOES NOT MAKE GUILT,

UNLESS THE MIND BE GUILTY.

The intent and the act must both concur to constitute a crime.

Similar to Nemo cogitationis poenam patitur: No one shall be punished for his

thoughts alone.



The existence of a criminal mind may be negated with the defences of: *Mistake

*Accident *Compulsion *Consent *Claim of right.

A lunatic may however be found guilty of crime, but will not be executed and

only kept in custody for lack of ‘real’ intent *i.e. mens rea].

See R v Nasamu, Sweet v Parsely and The State v Adelenwa.

AFFIDAVIT: HE SWORE.

Or ‘FOR HE HAS DECLARED UPON OATH’.

A written sworn statement of fact voluntarily made by an affiant or deponent

under an oath/affirmation administered by an authorised person.

Witnessed by a solicitor or a commissioner of oaths.

It may not be admissible as evidence; must be backed up.

The content should be only within the knowledge of the affiant.

If discovered false, with the intent to deceive; may lead to a charge of perjury.

ARMA IN ARMATOS SUMERE JURA SINUNT: THE LAW PERMITS THE TAKING UP OF

ARMS AGAINST THE ARMED.

The use of arms is only lawful if it is necessary as a form of self-defence, to

prevent or repel the commission of a forcible entry or an atrocious crime.

See Nwuguru v The State, R v Igwe and The Queen v Jinobu.

AUDI ALTERAM PARTEM: HEAR THE OTHER SIDE.

First enacted in the Magna Carta, 1215.

Similar to ‘AUDITUR ET ALTERA PARS’.

No person shall be condemned, punished or have any property or legal right

compromised by a law court without being heard.

It includes habeas corpus, right to receive notice of hearing and to be given an

opportunity to be represented or heard.

It is a principle of fair-hearing; that both party shall respond to the evidence

against them.

It is considered a principle of fundamental justice or equity.



The ancient Greek dramatists considered ‘hear both sides’ as part of ‘common

wisdom’.

Today, legal systems differ on whether a person can be convicted in absentia.

Even God, it is said, allowed Adam to make his defence before passing

judgment.

See King v Chancellor, Cooper v Wandsworth Board of Works, Fawehinmi v

LPD committee per Kayode Eso JSC, R v Chancellor of Cambridge Univerisity,

Adedeji v Public Service Commission, Akande v The state, adeigun v A.G. Oyo

state and Udemah v Nig. Coal Corp.

COMMODUM EX INJURIA SUA, NEMO HABERE DEBET: OUT OF HIS OWN WRONG, NO

ONE OUGHT TO HAVE ADVANTAGE.

Mostly applied in insurance cases whereby the assured inflicts injury on himself,

spouse or property to make a fraudulent claim.

See Lek v Matthews and Cole v Accident Assurance Co. Ltd.

CORPUS DELICTI: BODY OF CRIME.

Plural: ‘Corpora delicti’.

A principle that a crime must have been proven to have occurred before a

person can be convicted of committing that crime.

It is ‘the fact of a crime having been actually committed’ ~Black’s law dictionary.

Out-of-court confession of a defendant is insufficient as evidence.

An accused cannot be convicted solely upon an accomplice’s testimony.

If a person disappears and cannot be contacted, a ‘missing person’ case is

initiated. A ‘body’ of evidentiary items must be obtained to establish that the

missing individual has indeed been murdered.

Misinterpretation: in the case of British serial killer, John George Haigh, he

destroyed the bodies of his victims with acid thinking that in the absence of a

corpse, murder could not be proven.

DOMUS SUA CINQUE EST TUTISSIMUM REFUGIUM: A MAN’S HOUSE IS HIS SAFEST

RETREAT.



The house of everyone is to him a castle/fortress for his safety, and defence

against injury and violence.

“A house” includes a rented house.

In R v Hussay, the tenant was justified to have shot his landlord who tried to

forcibly eject him after a quit-notice.

See also The Queen v Eyo and R v Ebi.

EX PARTE: FOR ONE PARTY ONLY.

Or ‘OUTSIDE THE AWARENESS OF A PARTY.’

It refers to the proceedings where one of the parties has not received notice

and, therefore is neither present nor represented.

It is not ex parte, if a notice is received but the person chose not to attend.

However, some jurisdictions expand it to mean any proceeding that goes

undefended.

One of the parties applies to the court and is awarded without the knowledge of

the other party who may be bound or affected by the proceeding/verdict.

Ex parte applications often seek ‘court injunction’.

It gives room for injustice.

It is not common in the adversarial system.

Urgency often leads to it.

The party present in court must/is expected to present the case fairly.

EX TURPI CAUSE NON ORITUR ACTIO: OUT OF A BASE/DISGRACEFUL/ILLEGAL CAUSE,

AN ACTION DOES NOT ARISE.

“No polluted hand shall touch the pure foundation of justice.”

“He who comes to equity, must come with clean hands” [a maxim of equity].

It means redress shall not be granted to persons involved in an illegal deal.

Illegality in an agreement renders it wholly void of legal effect.

See Canfailla v Chahin, Stevens v Gourley and Onyiuke v Okeke.



HABEAS CORPUS: MAY YOU HAVE THE BODY.

Habeas: 2nd person singular present subjunctive active of ‘habere’ – to have.

Corpus: accusative singular of ‘corpus’; plural is ‘corpora’.

Fully written as ‘habeas corpus ad subjiciendum.’

Also called ‘the great writ’.

It is a writ [legal action] that requires a person under arrest to be brought before

a judge.

It ensures that a prisoner can be released from unlawful detention.

The remedy can be sought by the prisoner and anyone coming to his aid.

It is addressed to the prison custodian.

Others, aside the detainee, can write the petition because he might be held

‘incommunicado’.

It may be suspended due to a ‘national emergency’.

Types: *Habeas corpus ad deliberandum et recipiendum.

*Habeas corpus ad faciendum et recipiendum (or cum causa).

*Habeas corpus ad prosequendum.

*Habeas corpus ad respondedum.

*Habeas corpus ad testificandum.

INTER ARMA, LEGES SILENT: IN THE MIDST OF ARMS, THE LAW IS SILENT.

First written by Cicero in his oration; ‘Pro Milone’, as ‘Silent enim leges inter

arma’.

“The laws will thus not be silent in time of war, but they will speak with a

somewhat different voice” ~Chief Justice William Rehnquist.

“The clatter of arms drowns out the voice of the law” ~Henry David Thoreau.

It applies between different states, during civil disturbances or a coup d’état.

INTEREST REIPUBLICAE UT SIT FINIS LITIUM: IT CONCERNS THE STATE THAT THERE BE

AN END TO LAWSUITS.

Or ‘IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION’.

In effect, the law does not encourage prolonged litigation.



The wealthy might cause nuisance to the poor if litigation is not restricted.

Hence, the court expects the parties to come prepared and present their points

of differences as whole and not in bits.

See Ijale v Leventis Co. Ltd and Agu v Ikwibe.

JUDEX NON REDDIT PLUS QUAM QUOD POTENS IPSE REQUIRIT: A JUDGE DOES NOT

GIVE MORE THAN THAT WHICH THE PLAINTIFF ASKS.

If a plaintiff claims the sum of ₦10 as debt from the defendant, the judge cannot

grant more even if evidence reveals it’s actually ₦15.

See Khawam v Elias and Horizon Ltd v Wasurum.

JUDICIS EST IUS DICERE, NON DARE: THE JUDGE DECLARES (EXISTING) LAW, AND

DOES NOT MAKE NEW ONES.

Under our constitution, the court can only interpret legislations: See Section 4 of

CFRN.

See Abioye v Yakubu.

LEX DILATIONES SEMPER EXHORRET: THE LAW ALWAYS ABHORS DELAYS.

‘Justice delayed is justice denied’ ~William Gladstone.

See Usikaro v Itsekiri [Land Trustee.]

LEX NON COGIT IMPOSSIBILIA: THE LAW DOES NOT COMPEL THE DOING OF

IMPOSSIBILITIES.

The law which is founded on good sense and reasoning cannot possibly direct

that impossible things be done.

See: ‘nemo tenetur ad impossible’

MANDAMUS: WE ORDER.



A judicial remedy or an order from a superior court to a subordinate court,

corporation or public authority to do or not to do some specific act which that

body is obliged under law to do or refrain from doing.

Types: *Alternative *Peremptory *Continuing.

Example: In December 2009, Falana, in a suit against the Attorney General,

issued for a writ of mandamus compelling Yar’adua to transmit a written

declaration to the Senate President and speaker of House of Representatives

empowering Jonathan as Acting President [in line with Section 145 of CFRN].


Sometimes called the ‘nemo dat’ rule.

It states that the purchase of a possession from someone who has no ownership

right to it also denies the purchaser any ownership right to it also denies the

purchaser any ownership title.

A person who is not the legitimate owner of an item cannot despatch it to

another person.

Often stays valid even if the purchaser is not aware.

There are exceptions, though, which aim to give a degree of protection to bona

fide purchasers as well as original owners.

Section 27, Sale of Goods Act: anybody purchasing something without the

consent of the legitimate owner only attains the same rights to the item as the

dishonest seller.

Section 26(1): a buyer from a non-owner obtains no better title than the seller.

Exceptions: *Mercantile agent *Sale by joint-owners *voidable contract *Sale by

an unpaid seller *Termination of offer *Quasi-contract.

NEMO DEBET BIS VIXARI PRO UNA ET ENDEM LITIUM: NO ONE OUGHT TO BE TWICE

VEXED (SUED) FOR ONE AND THE SAME CAUSE.

Similar to ‘NEMO BIS PUNITUR PRO UNO (EODEM) DELICTO’ – No one should be

twice punished for one wrong.

Similar to the principle of Res judicata; in civil matters.

It states that nobody should be twice sued or prosecuted upon one and the

same set of facts, if there has been a final decision of a competent court.



However, an abortive or premature trial can be retried [see Windson v R].

In Connelly v DPP, the defendant tricked the judge by sending a dozen bottles of

champagne with the compliment of the plaintiff, hence winning the case. If

realised, the case could be re-tried on the ground of a mistrial.

NEMO DEBET ESSE JUDIX IN PROPRIA CAUSA: NOBODY OUGHT TO BE A JUDGE IN HIS

OWN CAUSE.

This is a principle of natural law.

Popularly known as the rule against ‘bias’ i.e. anything which tends a person to

decide a case other than on the basis of evidence.

It is based on the premise that it is against human psychology to decide a case

against himself.

It accords with the dictum of Lord Hewart C.J. in R v Sussex; ‘Justice should not

only be done, but also manifestly and undoubtedly be seen to be done.’

A biased decision is a nullity and is ‘coram non judice’.

May also be expressed as: *Nemo judex idoneus in propria causa est *Nemo

judex in parte sua *Nemo judex in causa sua *In propria causa nemo judex.

The maxim crystallised in United Breweries Co. v Bath in which the Lord

Chancellor (a shareholder in the company) decided in favour of the canal

company.

In Wright v Crump [1790], the Mayor of Hereford, England; claimed title to a

local house, arranged with a friend to lease it to him and then the friend brought

a legal action for the ejectment of the occupants – Lord Mayor himself found for

the claimant. Occupants appealed to the court of King’s Bench and the Mayor

was sentenced to a term of imprisonment.

Exception [doctrine of necessity]: bias would not disqualify an officer if no other

person is competent to act in his place e.g. Speaker of a house in impeachment

proceedings.

NOLLE PROSEQUI: UNWILLING TO PURSUE.

Or ‘DO NOT PROSECUTE’.

It is most often used in criminal cases.

It is called ‘voluntary dismissal’ in civil cases.



Similar to it is ‘declination of prosecution’.

Its opposite is ‘involuntary dismissal’.

It is the prosecutor’s decision to voluntarily discontinue criminal charges either

before trial or fore a verdict is rendered.

Judges seldom challenge such declarations.

It is not a guarantee for the impossibility of a later re-indictment and nor is it a

protection against ‘double jeopardy’ as the merits of the case were not

adjudicated.

Reasons: *Weak or insufficient evidence.

*Doubt as to the guilt of the defendant.

*Death of the accused.

PAR IN PAREM, NO HABET IMPERIUM: AN EQUAL POSSESSES NO POWER OVER AN

EQUAL.

Also called the ‘doctrine of immunity from suit’.

This is a precept that a state cannot be sued in the courts of a foreign state,

along-standing rule of customary international law identified with the personal

immunity of a foreign sovereign from suit.

It also applies to private individuals acting in their official capacity or

representing their state e.g. USA v Guinto.

But when the public official does act contrary to law and injurious to the

plaintiff, he is made accountable e.g. Shauf v Court of Appeals.

PLUS VALET UNUS OCCULATUS TESTIS, QUAM AURITI DECEM: ONE EYE WITNESS IS

STRONGER THAN TEN HEARSAYS.

Based on the principle that, at all times, justice must be manifestly seen to have

been done.

In law, ‘hearsay evidence’ is the opposite of ‘direct evidence’.



Also, any evidence given in the absence of an accused is not admissible against

him.

See R v Samuels and Onwocha v The state.

PRO BONO PUBLICO: FOR THE GOOD OF THE PUBLIC.

Done or undertaken for public good without any payment or compensation.

Necessitas publica major est quam privata: public necessity has priority over a

private need.

QUI NON IMPROBAT, APPROBAT: HE WHO DOES NOT DISAPPROVE, APPROVES.

Hence, a person in authority may be punished for covering a very serious crime

known to him/her.

In English law, ‘MISPRISION’ is an offence which is to conceal a treason/felony.

See R v Aberg.

QUI PARCIT NOCENTIBUS INNOCENTES PUNIT: HE WHO SPARES THE GUILTY,

PUNISHES THE INNOCENT.

For instance, the letting off of a rapist amounts to an ironical/literary

punishment of the victim for her agony, violation of dignity and molestation.

However, the sentence of ‘cautioned and discharged’ is deemed a conviction

and cannot be equated with sparing the guilty.

QUI PECAT EMBRIUS, LUAT SOBRIUS: HE WHO SINS WHEN DRUNK SHALL BE

PUNISHED WHEN SOBER.

…even if a person drunk himself to the state of ‘dementia effectum’ (self-

imposed madness), he will be punished for the crime after his sober moment; in

common law i.e. before 1920 [introduction of the concept of mens rea].

The present legal position is that voluntary drunkenness which deprives a

person of necessary mens rea cannot ground a criminal conviction.



If intent is coupled with violent passion, guilt is established as he is presumed to

intend the natural consequence of the act.

QUICQUID PLANTATUR SOLO, SOLO CEDIT: WHATEVER IS AFFIXED TO THE SOIL,

BECOMES PART OF IT.

In Onuwaje v Ogbeide, the plaintiff warned the defendant not to enter his land

warning that it is his. The defendant went ahead to erect a building on the real

estate; and then the plaintiff claimed title to it.

See also Atanda v Ajani and Tewogbade v Adeolu.

RES JUDICATA: MATTER ALREADY ADJUDGED.

Also called ‘claim preclusion’.

It is a legal doctrine meant to bar continued litigation between the same parties.

It may refer to a case which cannot be appealed because there has been a final

judgment.

It cannot be raised whether in the same court or another.

Aims at preventing injustice and a waste of resources.

It prevents contradictory judgments and multiple recoveries of damages.

Requirements: *Identity in the thing at suit.

*Identity of the cause at suit.

*Identity of the parties to the action.

*Identity in the designation of the parties involved.

*Whether the judgment was final.

*Whether the parties were given fair-hearing.

It includes two related concepts: *claim preclusion *issue preclusion or collateral

estoppel.

It may be ignored if there is a deficiency in due process in the adjudged case.

See Agu v Ikewide, Iyayi v Eyiegbe and Odjevwaje v Echanokpe.

SUB POENA: UNDER PUNISHMENT.

A writ by a government agency (court) compelling testimony by a witness or

production of evidence under a penalty for failure.



The English term, ‘witness summons’ is used in England and Wales.

John Waltham, Bishop of Salisbury, created the writ.

Subpoenas are usually issued by the clerk of the court in the presiding judge’s

name.

Types: *Subpoena ad testificandum: orders a person to testify before court or

face punishment, in person or by phone.

*Subpoena doces tecum: orders a person to bring physical evidence

before the court or face punishment.

VOLENTI NON FIT INJURIA: THAT TO WHICH A MAN CONSENTS CANNOT BE

CONSIDERED AN INJURY.

Expressly or impliedly assenting to an act makes it not to be actionable as a tort.

In another sense, no one can enforce a legal right which he has voluntarily

waived/abandoned.

That party must have known of his legal rights and either by express language or

sufficient overt act, tells the other party that he is not insisting on it (or them).

See Herd v Weardale Co. and Odua’s investment Co. Ltd v Talabi.



OTHERS!

CONSTITUTIO RESPICIT FUTURA ET NON PRAETERITA:.

CONSUETUDO EST OPTIMA LEGUM INTERPRES:.

DAMNUM SINE INJURIA ESSE POTEST:.

FRAUS EST CELARE FRAUDEM:.

FRAUS ET JUS NUMQUAM COHABITANT:.

IN CRIMINALIBUS, PROBATIONES DEBENT ESSE LUCE CLARIORES:.

JUSTITIAE DILATIO EST QUAEDAM NEGATIO:.

LEGES AB OMNIBUS, INTELLEGI DEBENT:.

LEGES EXPONERE, NON FERRE, DEBET JUDEX:.

LEX INJUSTA NON EST LEX:.

LEX NON SCRIPTA: NON-WRITTEN LAW.

LEX NON VALET EXTRA TERRITIORIUM:.

LEX SCRIPTA: WRITTEN LAW.

MORBUS EST IMPEDIMENTUM IN LEGE:.

NEMO EST HAERES VIVENTIS:.

NULLUM CRIMEN SINE POENA:.

NULLUM PONA SINE LEGE:.

NULLUM SIMILE EST IDEM: NOTHING SIMILAR IS THE SAME.

QUID AB INITIO NON VALET, IN TRACTU TEMPORIS, NON CONVALESCIT:.

VIM VI REPELLERE LICET: IT IS ALLOWED TO REPEL FORCE WITH FORCE.

NEMO DAT QUOD HABET: NO ONE GIVES WHAT HE DOES ...

Documents

Transcript of NEMO DAT QUOD HABET: NO ONE GIVES WHAT HE DOES ...