Mwanje Gideon
Black’s law dictionary defines a maxim as a traditional legal principle that has been frozen into a concise expression.
Perhaps many scholars have intolerably used various Latin maxims to prove a principle. However, the spirit of a law student has always been in grinding and uttering the unequivocal Latin maxims. These maxims at most law schools like Nkumba university law school are the order of the day, the modus operandi. They are taken to be a letter of the intellectuals and often used in arguments by credible students.
Legal maxims are basically established principles of Law that are universally admitted, and people in the legal field are very well aware of these words. They are mostly Latin words or a combination of a few Latin words. Common Law based on such principles in Latin to proclaim a principle. There over a thousand maxims but there those that should be on finger tips of any law scholar.
For starters, you ought to befriend such maxims to avoid confusion during law lectures, some time novices at law school get perturbed by the Latin words they encounter not only in lecture rooms but also in the notes.
Such maxims ought to be treated with a lot of gingerly; as most of them contradict each other henceforth others support the same. You’ll agree with me that Law has a language entirely of its own, which is filled with Latin words that I believe will be prima facie unfamiliar to you.
Be that as it may, they must be construed mutatis mutandis with the national legislation. It is important to learn these legal terms because not only will you need to understand key Latin phrases during your time in law school, but also you will encounter these terms throughout your legal career. No Law student or novice at law school should feel out of place for not knowing the common Latin expressions used in Law. I bring to you most of them with their legal implications in Uganda. Ugandan Law just like English law is tremendously a replete batched with Latin doctrines.
The following are some common Latin maxims that any law student would wish to use in an essay, examination, moots, court room or even in a legal argument to bring out clearly his/her principle or point of Law.
Accessorium non ducit, Sed sequitur, Suum principale– this literally will mean that an accessory does not lead, but follows, its principal. It can be used in areas of criminal Law to expound more on the accessory before the fact and after the fact. It always understood that there is a principal to give a lead to an accessory. Under our legislation an accessory after the fact is provided under section 393 of the Penal Code cap 120, laws of Uganda.
It is further said that Accessorius sequitor naturam sui principalis which means an accessory follows the nature of his principal. However we always argue this maxim in line with cujus juris est principale, ejusdem juris erit accessorium– which means an accessory matter is subject to the same jurisdiction as its principal.
Actio non facit reum, nisi mens sit rea– you’ll all agree with me that any law student or lawyer who does not understand this maxim is in contempt to stand in front of a criminal court and submits on the ingredients of an offence. It literally means an act does not make a person guilty unless the mind is guilty. However it a rebuttable presumption just like the many general rules in Law.
Actio personalis moritur cum persona; this simply means a personal action dies with the person. It is commonly used in cases of abatement and revival. In criminal Law, once an accused dies, the case is automatically closed except in the presence of other perpetrators.
Actio quaelibet it sua via– This means that every action proceeds in its own course.
Actore non probante, reus absolvitur – it means that if the plaintiff does not prove his case, the defendant is acquitted.
Actori incumbit onus probandi– it means the burden of proof rests on the plaintiff.
Actus curiae neminem gravabit– an act of Court will prejudice no one.
Actus Dei nemini facit injuriam – this means that an act of God does wrong to no one, this simply means the loss lies were it falls, no one is responsible in damages for inevitable accidents. It can also be summarized as Actus Dei nemini nocet- an act of God does wrong to no one.
Affirmantis est probare– the person who affirms must prove
Aequitas est quasi equalitas ; this means equity is as it were equality.
Aequitas sequitur legem – this means equity follows the Law. this is one of the known maxims of equity.
Ambiguitas contra stipulatorem est; this means a dubious expression is construed against the party using it. This is commonly used in contract law under the contra-proferentum rule. Courts of Law will construe a term or clause in contract against the party seeking to rely on it if it turns out to be vague and ambiguous.
Aqua cedit solo– it means the water goes with the ground, therefore a grant of land includes the water on it.
Arma in armatos sumere jura sinunt– this means the laws permit taki9ng up arms against the armed. This can also be clearly construed from the constitution provision empowering citizens to stand against any person intending to ovber throw the constitution using whichever means possible.
A verbis legis non est recedendum– which means from the words of the Law there is to be no departure.
Ab Initio – From the beginning.
Actionable per se – The very act is punishable, and no proof of damage is required.
Actus reus – Guilty act.
Ad hoc – For the particular end or case at hand.
Alibi – At another place, or elsewhere. It is commonly used as a defence in criminal where the accused claims to be somewhere else not at the scene of crime. This therefore puts the onus on the prosecution to lead evidence that pins the accused person’s presence on the scene of crime.
Amicus Curiae – A friend of court or member of the Bar who is appointed to assist the court. He can mean someone who is not a party in a particular legal case but who assists the court by offering their information, expertise, or other important insight that has relevancy for the case’s issues.
Audi alteram partem – No man shall be condemned unheard. This is always envisaged more in administrative Law to deal with tribunals or other Government bodies whether they gave a fair hearing to a person appearing before them.
Bona fide – In good faith. This is a great principle of good faith used in instances of determining fraud and other dishonest acts in Law.
Bona vacantia – Goods without an owner. This can be used in situations of a person claiming ownership or possession of certain goods. This however differs with that of real property Terra nullius is a Latin expression meaning “nobody’s land”.
Caveat venditor– let the seller beware
Caveat viator– let the traveler beware
Caveat emptor – means let the buyer beware. For example one going to “kikuubo” to buy some old clothes cannot sue the vendor when he reaches home and they get torn. You should be aware that old clothes are liable to any alternation.
However, the contrast is in another maxim Uberrimae fidei meaning “utmost good faith”, this Latin phrase is a contrasting doctrine to caveat emptor. It refers to situations where parties to a contract must fully disclose all the material facts to ensuring that they are contracting in good faith. It can also be argued in instances of real property for example under the duties of the Mortgagor under section 4 of the Mortgage Act, 2009.
commodum ex injuria sua non habere debet– the wrongdoer should not derive any benefit from his own wrong. Read the case of Re Sigworth case of 1935.
Re Sigsworth (1935) concerned a case where a son had murdered his mother. The court was asked to answer a question on the assumed premise that a woman had been murdered by her son and had died intestate. The mother had not made a will and under the Administration of Justice Act 1925 her estate would be inherited by her next of kin, i.e. her son. The golden rule was applied to prevent a murderer from tasking on intestacy of his victim although he was her son he couldn’t benefit from his wrong.
Communis error facit jus– which means a common error often repeated makes Law.
Corpus – literally means Body. I know most of you have heard of the right of Habeas corpus under Article 44 of the 1995 constitution as amended. This word habeas corpus simply means produce the body, dead or alive. It is normally sought were a person is believed to be unlawfully detained by a Government. Mostly in unlawful custody.
Cujus est commodum, ejus est onus– the person who has the benefit has also the burden. Whoever would wish to benefit should prove his/her case
Cujus est solum , ejus est usque ad coelum– this means a person who owns the soils owns up to the sky, therefore one who owns the soils owns or has exclusive rights on everything on it, above it and to an indefinite height.
Cujus est solum , ejus est usque ad coelum et ad inferos – whoever owns the soil owns everything up to the sky and down to the depths. It is a fact that at common law authors used to say from the surface above up to the gates of heaven and below the surface up to the gates of hell, that was a fallacy.
Curator Bonis – this is person whom the court will appoint to actually look after the property of that mentally challenged person or minor. This can also mean a manager, under section 15 of the Administration of Estates of Persons of Unsound Mind Act, it propounds more on this well.
Damnum sine injuria – Damages without injuries. This is normally argued in tortuous liability offences such as trespass to persons, which are actionable per se; you are not required to prove injuries to get damages from court. Mere trespass to a person’s liberty is enough.
De facto: this means ‘in reality’ or “in fact”, it is a joining statement used in law arguments.
De Minimis Non Curat Lex – The Law does not govern trifles (unimportant things). Or Law is not concerned with small or insignificant things/matters. We can call them trivial matters, or minor technicalities; this can be supported by Article 126 of the 1995 Constitution of Uganda as amended.
Dictum – This can be defined as a Statement of Law made by the judge in the course of the decision but not necessary to the decision itself. Its other maxim obiter dictum stretches to the by the way stamen made by the judge or judicial officer. This is where the judge makes an incidental remark that does not have a direct bearing on the case. You can relate this to the case Balfour V Balfour (1914) where Lord Atkins gave an obiter dictum concerning mutual agreements made by spouses not to amount to valid contracts in Law.
Doli capax – Capable of forming the necessary intent to commit a crime.
Detinue – Tort of wrongfully holding goods that belong to someone else
Donatio mortis causa – Gift because of death. Or a future gift given in expectation of the donor’s imminent death and only delivered upon the donor’s death.
Ex officio – Because of an office held. This has been used in a number of legislations and same applies to the constitution of Uganda as amended.
Ex parte – Proceedings in the absence of the other party. This is normally done during Civil procedures where the case proceeds in the absence of the other party.
Mutatis mutandis – this phrase literally means that the necessary changes having been made. It is always used to refer to two events relating to them and show how the change has been altered. To those that always encounter judgments of court, it is a commonly used aphorism.
Nemo dat quod non habet– This translates to mean that no one can give what he or she does not have. If you do not have a better title you cannot give out a better title. This phrase makes clear that having mere physical possession of something does not necessarily mean that it belongs to you in the eyes of the Law. What is important is for you holding the legal title. Under Ugandan laws, it can be properly manifested in section 29 of the Sale of Goods and supply of Services Act 2018.
Omnis persona est homo, sed non vicissim. Every person is a human being, but not every human being a person
Onus probandi– this means “the burden of proof”, under the Evidence Act cap 6, laws of Uganda from section 102, the burden of proof lies on who alleges.
In flagrante delicto– it means being caught whilst committing the crime or caught “red-handed”.
Per Curiam: Decisions made per curiam are rulings made unanimously, with the written decision collectively authored by the court instead of by one or two individual judges.
Prima facie– This means that “on the face of it”. It is usually used to propound that there’s a presumption which be considered true unless rebutted or disproved. This can be used to refer to water tight cases or a case prima facie is a good one.
Persona Non Grata: This is where a person who is not welcomed in a foreign country. He may been there and afterwards declared persona non grata, this also serves as a remedy to diplomats after committing a crime, they can be declared persona non grata.
Quasi: The term is usually used as a prefix before any word to indicate that something resembles but is not actually like a certain thing. For example, an attorney may state that something is a quasi-contract, meaning that the item looks like a contract but is not an actual contract.
Quid pro quo – This literally means the aspect of exchanging of one thing for something else. It can be used under contract law in the instances of consideration.
Quicquid plantatur solo, solo cedit is a legal Latin principle related to fixtures which means that something that is or becomes affixed to the land becomes part of the land; therefore, title to the fixture is a part of the land and passes with title to the land.
Res ipsa loquitur is a Latin phrase, which literally translates to “the thing speaks for itself.” An essential part of any personal injury case is being able to show that the other party’s wrongdoing or negligence caused the injury at issue. Sometimes, an injured party is unable to show direct evidence of negligence. One has to prima facie prove the following to base on res ipsa loquitor the injury is usually caused by negligence, the defendant had sole control of the situation or circumstances of the injury and , the plaintiff didn’t do anything to bring the injury upon themselves. This was in the case of Mary Bukenya v. Akamba Public Road Service (1979) HCB, it alluded to the fact that once buses are driven well and maintained, they cannot overturn.
In conclusion, Latin maxims are so important to any law scholar and the one practicing it in a way that it properly brings out a variety of legal principles which can have far reaching benefits of winning a case. It is a humble prayer to everyone in the legal world to get acquitted with Latin maxims as their daily prayer, the usual modus operandi.
About the author:
Mwanje Gideon alias Batapa is a law student at Nkumba University who has written a number of publications concerning music law and copyright.
He is the author of a famous book ‘The Law and the Common person’, among other articles. He is the founder member and President of the Nkumba University School of Law Research Club, the Nkumba University Law Students Journal (NULSJ); and President of the Nkumba University Law Society.
