Peter Agiri (University of Lagos) has posted LIEN, Language, and the Limits of Title: A Critical Analysis of Afrotec Technical Services (Nig) Ltd v MIA & Sons Ltd vis-à-vis Property-Passing Under the Sale of Goods Act on SSRN. Here is the abstract:
Few decisions in Nigerian sale of goods law reveal the difficulty of determining when property passes as clearly as Afrotec Technical Services (Nig) Ltd v MIA & Sons Ltd. The decision sits at the intersection of two distinct incidents of an unpaid seller’s rights: the possessory lien and the reservation of the right of disposal. This paper revisits the Supreme Court’s reasoning under sections 16 to 19 of the Sale of Goods Act 1893, questioning the majority’s characterisation of the transaction as a conditional sale. It argues that the reasoning gives insufficient distinction to the operation of a possessory lien, which ordinarily terminates upon delivery, and a reservation of title, which concerns the passing of property itself. Considered alongside the comparative retention-of-title jurisprudence in Clough Mill Ltd v Martin and Re Bond Worth Ltd, the contractual clause relied upon in Afrotec appears ill-suited to sustain a genuine Romalpa-style reservation of title. The dissenting reasoning of Ayoola JSC, applying section 18, rule 1 to an unconditional credit sale of specific goods in a deliverable state, therefore offers a more coherent doctrinal account. The paper nevertheless suggests that the practical protection sought by the majority could have been reached through the narrower footing of section 48(4), which preserves the unpaid seller’s right of resale. Viewed against the subsequent Secured Transactions in Movable Assets Act 2017, Afrotec ultimately illustrates the difficulty of fitting contractual security over movable goods within a doctrinal framework built primarily around the passing of property.
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