Law, whether spiritual, natural or human is a necessity for orderly, right and good life in every society. The functions or relevance of law to society are numerous and cannot be enumerated. However the following may be regarded as the functions of law in the society:

1.       Law is meant to ensure and maintain order and tranquillity in the society. It is obvious that where there is a group of person contradictions and conflicts are bound to occur, It therefore becomes imperative that a social control mechanism has to be evolved for the prevention and resolution of dispute as a means of inducing peace and order in the society.

2.      Law is meant for the preservation of the existing legal system. Where there is a threat to the existing legal order such as attempting to overthrow an existing government otherwise than through a due political process or where people incite the general public against the government, the law of treason and sedition will apply to punish the culprits. In this regards section 1(2) of the 1999 Constitution (as amended) provides thus:

“The federal republic of Nigeria shall not be governed nor shall any person or group of persons take control of government of Nigeria or any part thereof except in accordance with the provision of the constitution.”

This section of the constitution is meant to check and control militant political association as well as other recalcitrant from taking over the government.

3.      Law helps to guarantee and ensure freedom, liberty and right of an individual. Chapter four of the 1999 constitution (as amended) entitles “fundamental human rights” which guarantees right to life, dignity of human person, personal liberty, fair hearing, freedom of thought, conscience and religion, freedom of expression and freedom of movement etc.

The facts that many constitutional documents promote and guarantee fundamental rights and liberties show the extent to which law has its ideal, aim and function, the maintenance of freedom and liberty of individual.

4.      Law is a code of conduct or a means of establishing standard. The law helps to set a standard for individual conduct. It is a guide post for minimally acceptable behaviour in the society. Some activities are crime induced simply because the society through the legislative body has determined not to tolerate such activities or behaviour that damage persons or their properties. For instance legally speaking, it is a crime to cause physical injury to the body of another person without justification. This act generally constitutes a crime of crime and punishable under section 264 of the Penal code. At this point, it is obvious that law makes man’s behaviour in a given situation to be predictable. This is so because it has set limitation for an individual action in any given society.

5.      Law is used for the protection of property by recognising ownership of property and protecting the owner from unlawful appropriation. In this regards section 286 of the Penal Code defines the offence of theft as the appropriation of the property of another person without his consent and with the intention to permanently deprive that person of the use of his property. Section 43 of the 1999 Constitution (as amended) also stipulates that subject to the provision of this constitution, every citizen of Nigeria shall have the right to acquire and own immoveable property in Nigeria.

6.      Protection of weak segment of the society: certain laws are made to protect the weak segment of the society and vulnerable segment of the society such as the Illiterate Protection Laws, the Infant Protection Laws and the Child Rights Act etc.

7.      Law is used to preserve societal values. Although law differs from morality, religion, custom and culture, it nonetheless reinforces societal values.

8.     Law also creates or establishes law enforcement agencies, institutions, administration of justice system, penal and correctional institutions and facilities.

9.      Law also grants remedies and justice to those who have been wronged.

10.  Law helps or enables individuals or bodies to actualize or express theirselves. It enables an individual to actualize himself, do his business and live his life in a lawful way.

11.   Law is a means of organising, structuring, improving and developing any individual, institution, society, State or country. For instance, a constitution which is a legal document may be written to structure a country and its constituent parts, create offices, stipulate conditions to occupy or vacate office and assigns functions, powers and limit to public offices.

Law has so many attributes or characteristics. The attributes of law include the following:

1.      Law is fundamental and pervasive. There is law with reference to nearly all things. Law covers and regulates practically all aspects of life and activity.

2.   Law is a collection of rules, remedies and sanctions as the case may be. Law is a collection of do’s and don’ts or norms. It prescribes what a person should do or not to do.

3.      In the olden days many laws evolved from customs. Nowadays, law is usually made by the legislature, that is the parliament or by a delegated legislature or other law makers in accordance with the systems operating in a given country. For instance, in Nigeria the National Assembly is constitutionally assigned with the responsibility of legislating for the federation while the State Houses of Assembly are saddled with the responsibility of legislating for their respective States.

4.      Nowadays, law is mostly codified, that is, written at the instance of the law maker especially where it is it made by parliament. On the other hand, laws which emerge from customs are mostly unwritten and today they exist either as partly written or wholly unwritten. It also takes the form of judicial precedent and so forth. However, law may be written that is codified as a Statute law or partly uncodified in form of common law and customary law.

5.      Law aims at achieving justice – justice is fairness, equity and the right application of the law. Justice is what the law aims to do between two adverse parties. Justice is also what the law is supposed to produce. Although law is synonymous with justice, yet the law is not always just, this happens when a rigid application results in injustice. The law sometimes unfortunately falls short of justice. However, before God and man the in changing and only duty of a judge is to do justice. Thus, our laws should be enacted to enable judges do justice and make the courts a place where everyone can get justice.  

6.      Law is man-made: laws are rules adopted by the society to govern itself. Thus, law within the context of our definition cannot be regarded as God-given as contained in the holy books. Since law is man-made, man has the responsibility to determine to a large extent the content of the law of his society. It suffices to observe that while many factors including religion, morality, customs and stage of socio-political development of a society usually have some bearing on the selection of the laws by which a society is governed, it must be realized that such values or rules are not laws unless they are traceable to the institutional sources such as to the constitution, Statute, case law and delegated legislation etc.

7.      Law is territorial and has territorial limits: laws are usually made to guide the conduct of the people in a particular society or territory and binding on the people within that society or territory. A classical example is found in the principles of International that “no country ever takes notice revenue laws of another country.”

In Holman v Johnson, the plaintiff had sold tea to the defendant in Dunkirk with knowledge that the tea was to be smuggled into England. In a suit for recovery of the price, it was objected that the contract was void for illegality. The court rejected this contention based on the above principle. It was held that the seller had no concern in the smuggling scheme and did not violate any English law. To uphold the claims of the defendant would be tantamount to giving the English law external territorial effect.

Thus, law only operates or takes effect in the geographical territory in which the law applies such as corporations, institutions, local government areas, States, country or international community as the case may be.

8.      Law is dynamic in nature: since law is meant to regulate the behaviour of man in the society, the content of the law of each society usually changes as the social, political and economic world in which he lives change. Thus, law is not static but dynamic and may be amended and reformed to meet the needs of the people as changes occur and as the society grows.

9.      Law may be logical, but it it not necessarily based on logic nor coterminous with logic. Therefore, rules of law and judicial decisions may not necessarily be logical.

10. Law is a reflection of societal attitude. A good example is the law of societal security and welfare State, which is a clear reflection of the need to care for the weak and needy.

11. Law may be rooted and spring from the nature, culture and history or religion of the people as well as the socio-economic and political life of the people. Furthermore, law may simply be a command, positive declaration, legal order, decree or do’s and don’ts issued by a law maker.

12. Law is a reflection of the moral state or condition of the society. Law reflects morality even though law is not necessarily moral or coterminous with morality. In other words, law may be moral but law and morality is not one and the same thing.

The law governing sale of Goods in Nigeria is the Sale of Goods Act, 1893 (a statute of General application in force in Nigeria). The rules of Common Law, including the Law Merchant which is not inconsistent with the express provisions of the Sale of Goods Act, 1893 are also applicable.

Originally, the Sale of Goods Act 1893 had force throughout Nigeria. Today, the rest of the federation still apply the Sale of Goods Act 1893, except in Western States and the then Bendel State now Edo State, where the Sale of Goods Act 1893 is replaced by the Sale of Goods Law, 1959. In other words, the operation of the 1893 Act is confined only to Lagos State and those States created from Northern Nigeria. The Western region of Nigeria repealed the Act and replaced it with the Sale of Goods Law 1959. In spite the change, the Sale of Goods Law 1959 is still a carbon copy of the Sale of Goods Act, 1893.

The study of sale of goods is only a specialised one in the sense that it is a contract involving sale of goods; otherwise it is essentially a part of the general law of contract. The Act has not therefore; done away with the general rules relating to contract; hence, offer and acceptance, consideration and other elements of a valid contract must be present in a contract of Sale of Goods.

C.I.F. Contract is the acronym which means Cost, Insurance and Freight. It is a type of a contract which is more widely and more frequently in use than any other contract used for the purpose of seaborne commerce.

According to Lord Porter in the case of Comptoir d Achat v Luis de Ridder it is the type of contract where the seller is under obligations to ship at the port of shipment, goods of the description enclosed in the contract, to secure contract of carriage by sea, to make out invoice which will charge the buyer with the agreed price of the actual cost, commission charges, freight and insurance premium and to tender bill of lading to the buyer covering   the goods contracted to be sold.

Against tender of the aforesaid documents the purchaser must pay the price, receive the goods at the port of destination, procure import or permit license and in such a case  a property may pass either on shipment or on tender of documents. The risk generally passes on shipment and title over the goods does not pass until documents which represent the goods are handed over to the buyer in exchange of price. In C.I.F. contract, the focus is not the sale of the goods themselves, but the sale of documents relating to the goods. This is to the effect that, possession of document is as good as possession of goods in transit.

F.O.B. contract on the other hand is a trade term which stands for Free On Board. This type of contract was well elaborated in the case of Wimble Sons & Co. Ltd v Rosenberg & Sons. In this landmark case, it was declared that, F.O.B. is the contract under which the buyer nominates the seaworthy ship, the seller is obliged to put the goods free on board at his own expense  under  the  account of the buyer.

Furthermore, the seller is under obligation to pay cost and bare responsibility of putting the goods free on board until the goods passes the ship rail. It is at the ships rail where division of liability in F.O.B. contract occurs, this is in the sense that, the risks over the goods passes from the seller to the buyer when the goods passes over the ships rail.

However, the passing of property in goods has different legal procedure in terms of unascertained and ascertained goods. In F.O.B contract, unascertained goods those shipped in bulk to be distributed to different buyers at the port of destination, the property in such arrangement does not pass to the assigned buyers until the bulk of goods are apportioned to them at the port of destination.

The property will be said to have been passed, when every concerned buyer has acquired his or her portion of the imported goods at the port of destination. In case of ascertained goods, property passes when they are shipped unless the passing of title is postponed by express or implied contract terms.

The shipping documents in C.I.F contracts are basically three unless otherwise agreed by parties other documents can be attached together with the following:

1. Bill of Lading.
2. Marine Insurance.
3. Policy and Invoice.

Bill of Lading

This valued document in international trade is used in both C.I.F. and F.O.B. contracts. The authoritative definition of bill of lading was uttered in the case of Lickbarrow v Mason (1974). In this case, it was stated that, a bill of lading is the formal receipt by ship owner that good have been received for shipment in the stated condition and quality, is the memorandum which evidence and repeats in detail the contract of carriage by sea and lastly it is a document of title to the goods which enable the consignee to dispose the goods by endorsement or delivery.

Marine Insurance Policy

This document provide constant cover from the port of shipment to the port of discharge in the manner that whatever peril happen in the goods during transit the buyer will have a cause of action on the bill lading against the carrier or against the underwriters on the insurance policy. Marine insurance is used mutually under C.I.F. and F.O.B. contracts particularly in F.O.B. Contract with additional services.

A contract of marine insurance is an agreement of the parties or custom of trade extended so as to protect the assured against losses on inland waters or land which are incidental to the sea voyage.

The terms of the international contract of sale provides as to who bares the costs for the marine insurance in international export and imports of goods. For example, where parties engages C.I.F contract, it is the duty of the seller to undertake marine insurance policy and settle all the demanding costs. On the other hand, in F.O.B contract as the name suggests, the question of insurance is not that contemplated.

Thus, where parties engages F.O.B terms it is the principle duty of the buyer to undertake marine insurance unless it is F.O.B with additional services where the seller may undertake such insurance policy upon the request of the buyer and in account of the buyer.

The Invoice

This is another vital document preferred in both F.O.B. and C.I.F. contracts. Invoice normally debits the buyer with the agreed price or the actual cost, commission charges, freight and insurance premium. The invoice must be fulfilled in strict agreement with terms of contract to avoid difficulties in payments particularly when documentary credits are involved.

Section 8 of the Sale of Goods Act defines what constitutes price in a contract of sale otherwise known as the basis for price determination. Thus, the provision of section 8(1) provides that the price in a contract of sale maybe fixed by the contract, or may be left to be fixed in a manner agreed or may be determined by the course of dealing between the parties. Section 8(2) provides that where the price is not determined in accordance with the foregoing provisions, the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each case. Arising from the foregoing provision of section 8 of the Sale of Goods Act, it can be deduced that the price must be monetary which;

        i.     May be fixed by the parties, or;

      ii.      May be left to be fixed in a manner provided by the contract for instance by valuation or arbitration.

    iii.   May be determined by the course of dealings between the parties the parties such as through previous transactions between them or any relevant custom of trade or profession. However, if the price is not so fixed or determined, there is a presumption that the buy will pay a reasonable price.

Nemo dat quod non habet is a general rule that a person who buys goods from someone other than the owner of the goods will not obtain good title to the goods and it makes no difference if he acted in good faith. If a seller of goods has no property in the goods and does not sell on the authority or consent of the owner, then he cannot transfer a good title to a buyer. This general rule is expressed in the Latin maxim “Nemo dat non quod habet.” The principle literally means no one can give what he does not have. In other words, a person cannot afford what he does not have – a person cannot transfer what he does not possess. Section 21(1) provides that where goods are sold by a person who does is not the owner and who does not sell them under the authority or 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. To this effect, a seller in commercial transactions cannot transfer a valid title to a buyer when he has not title to the subject matter of dispute.

   Under the exceptions to the general rule of Nemo dat quod non habet, as provided in the  circumstances infra, a non owner who would otherwise not be entitled to pass good title would by deemed by law to have passed a good title.  Thus the following are the exceptions to the rule:

       Sale under Agency: A sale by an agent without actual authority will give the purchaser a good title if the sale is within the agent’s apparent authority. This exception is a creation of section 21(1) of the Act which provides that if a person is not the owner of goods and sells goods under the authority or with the consent of the owner, the buyer acquires a good title. In other words, the principle of agency may permit a seller who is not the owner to transfer title to the buyer. This means that the person selling and the owner have created an agency relation.

       Estoppel: Estoppel is an exception created by section 21(1) of the Act which provides that unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell. Thus, where the owner of goods represents that another is his agent, although no such authority exist in fact, in this situation the transfer of such property in good is valid and the owner would be stopped from denying the fact. In Henderson & co v Williams Ltd, it was held that both Y and Z were stopped from denying X’s authority to sell the sugar, the farner (Y) because he has represented that X was the owner by ordering Z to transfer the goods into his name in their books and the later Z because he had attained to R, that is, represented to him that he held the goods to his order. To this end, it should be noted that estoppels could either be estoppels by representation or estoppels by negligence. Estoppels by representation are divided into: estoppels by word and estoppels by conduct.

       Sale in Market Overt: A market overt is am open and legally constituted market where people usually gather to carryout transactions involving buying and selling of goods. Only markets are legally constituted by law; they are those recognised as market. In other words for a place to be recognised as market, it must be constituted and recognised by law. For example, Market overt may include Keffi market, Massaka market, Nasarawa market etc are all examples of market overt under the control of the local government council .Apart from statute, and market overt could also be a creation of custom. An unauthorised market does not qualify as market overt.

       Section 22(1) of the Act provides that where goods are sold in a market overt, according to the usage of the market, the buyer acquires a good title provided he buys in good faith and without notice of defect or want of title on the part of the seller. Also, to constitute a sale in market overt, it must be shown that the sale took place within the premises of the market during the usual period of business, provided it is sale of goods usually sold or bought in the market. The usual period of the market is from sun rise to sun set. In Reid v Metropolitan Police Commissioner, the sale of stolen goods took place in a market overt. The Court of Appeal quashed the decision of the lower court to hold in favour of the defendant buyer, because the goods should have been sold at day time when all who passed could see the goods.

       Sale by a person having voidable title: Where a contract is said to be concluded on mistake, misrepresentation etc particularly where in such a transaction the buyer fails to avoid the contract either by express words or conduct and subsequently the subject matter is transferred to another buyer (third party) who purchases in good faith, in this regards the transfer of the property to the buyer is valid. In other words, a person who buys goods under a voidable contract acquires a voidable title and if he resells the goods before the contract is avoided, the subsequent buyer acquires a valid title which is not affected by the subsequent rescission of the contract. The above principle is affirmed by section 23 of the Act which provides that where a seller of goods has a voidable title but his title has not been avoided at the time of sale, the buyer acquires a good title provided he buys the goods in good faith and without notice of the seller’s defect in title. In Lewis v Averay, a rogue, impersonating a famous actor got the seller to deliver a car to him by issuing a fake cheque. Before the cheque was returned unpaid by the bank, the rogue had sold the car to a buyer who has no notice of the fraud. It was held that the latter purchaser got a good title by virtue of section 23. However, it should be noted that the contract was concluded on mistake, misrepresentation or other fraud and the buyer is aware of it but still go ahead to purchase the goods, the contract would be invalid.

       Sale by Seller in Possession: the transaction is effected where a person who has sold goods retains possession of the said goods and subsequently resells them to another person i.e. a third party. Thus, provided that the third party bought goods in good faith and had no notice of the previous sale, the transfer of property in the goods in this instance is valid. This principle is governed by section 25(1) of the Sale of Goods Act as well as section 8 of the Factors Act.

       Sale by a buyer in possession: This principle provides that where there is a contract of sale of goods as between a buyer and the seller for which the goods are left in possession of the buyer who although, has not acquired the title of the goods provided that the property in the goods is yet to be transferred to the buyer. Thus, if the buyer subsequently sells the goods in his possession to a third party who received the goods in good faith without notice of the original seller’s right, the transfer of property in the goods becomes valid. This principle is guided by section 25(2) of the Sale of Goods Act and section 9 of the Factors Act. Hypothetically, if A agrees to sell to B and B is given possession of the goods although property in the goods has not pass to B when sale is executed and delivered in C by B who takes the goods in good faith the transfer of property to C becomes valid.

       Sale by a mercantile agent: This except provides that where with the authority and consent of the owner subsequently acquires possession of the goods – any sale executed on such goods by the agent to a buyer will be valid. However, whether or not sale is authorised by the owner is immaterial provided the owner of the goods employs the seller as his agent to the goods under possession. This exception is governed by section 1(1) and section 2 of the Factors Act 1889 which deals with the powers of a mercantile agent.

       Sale under common law:  Section 21(2) of the Sale of Goods Act provides that nothing in this Act shall affect the validity of any contract of sale under the order of court of competent jurisdiction. Thus, at common law, sale can be effected without the consent of the owner and the buyer will acquire good title where for instance a pledge of goods sells or where a person sells as agent of necessity.

       Sale under statutory power: Statutory power of sale is provided for by various statutes which include the following:

•           Under section 48(3) of the Sale of Goods, an unpaid seller of goods has power to resell goods of a perishable nature.

•           Under section 226(2)a of the Companies Act, 1968, a liquidator of a company has power to sell the company’s property.

•           Also under section 57 of the bankruptcy Act, a trustee in bankruptcy has power to sell property of the bankrupt.

       Sale under court order: Section 21(2)b of the Sale of Goods Act protect all sales carried out under the order of court of competent jurisdiction. Thus, where a court bailiff in execution of a court order or an auctioneer of the court carry out sale of goods which he has no title, the transfer of property in the goods will be valid.