Legal Personality

• Pages: 375-404

LEGAL PERSONALITY

(1) ARTIFICIAL PERSON

1201. An artificial person.

“Thus, the Supreme Court defined artificial person in Chief Gani Fawehinmi v.

Nigerian Bar Association (No. 2) (supra) as a corporation which is an invisible

intangible being and existing only in contemplation of the law.” - Per Tobi, J.C.A. in

Ndoma-Egba v. Government of Cross River State Suit No. CA/E/153/90; (1991) 4

N.W.L.R. (Pt. 188) 773 at 786-787.

1202. Artificial person who can sue and be sued.

“As a matter of general rule, an artificial person, in order to be a legal or juristic

person, should be vested with the right to sue and sued in that legal or juristic name.

As a matter of general legislative practice, the enabling statute establishes the legal

or juristic person by name followed by the words “which shall be a body corporate

with perpetual succession and common seal which can sue or be sued in its corporate

name.” There is nothing sacrosanct about the above words. No draftsman is under

any compulsion to use those words. But whatever words are used, the draftsman

should leave no mind in doubt as to the legal or juristic nature of the body.

The impression should not be created that the enabling statute must invari-

ably vest in the body or institution the power to sue or be sued in the corporate name.

There is nothing magical about these expressions. If from the totality of the enabling

statute, the corporate element and the power to sue and right to defend any action

can be inferred, the law will presume that status. But the language should be clear to

draw that inference. In Kpebimoh v. The Board of Governors Western Ijaw Train-

ing College (1966) 1 N.M.L.R. 130, it was held that an unincorporated body could in

certain circumstances be recognised as a juristic person with power to sue and be

sued. And so, bye and large, it is the language of the enabling statute that has to be

closely watched. I should say that the Kpebimoh situation is rare. As a matter of

law, it is almost an exception to the general state or regime of the law, if not an

exception.” - Per Tobi, J.C.A. in Ndoma-Egba v. Government of Cross River State

Suit No. CA/E/150/90; (1991) 4 N.W.L.R. (Pt. 188) 773 at 787.

1203. Can artificial person sue and be sued?

“The statement of law in this regard is contained in Bullen & Leake & Jacobs:

Precedent of Pleadings (12th Edition) p. 330-331 as follows: - “Public companies

and other corporations aggregate whether incorporated by charter, by prescription,

by Act of Parliament, or by statutory registration, sue and are sued by their corporate

name. This must be set out in full on the writ and in the heading of every plead-

ing, though in the body of the pleading, it is sufficient to say “the plaintiffs” or

“the defendants” or “the plaintiff company” or “the defendant company” as the case

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Artificial Paras. 1201-1203

Paras. 1203,1204 Vol. 15: LEGAL PERSONALITY 376

may be.” – Per Ejiwunmi, J.S.C. in Bank of Baroda v. Iyalabani Co. Ltd. Suit No.

S.C. 59/1998; (2002) 13 N.W.L.R. (Pt. 785) 551 at 571-572.”

1204. How juristic personality of artificial person is proved.

(1) “Again in Carlen (Nig.) Ltd. v. University of Jos & Anor. (1994) 1 N.W.L.R.

(Pt. 323) 631, the issue was again exhaustively discussed and a number of authorities

referred to. Onalaja, J.C.A. after citing a number of these authorities, went on to say:

- “From the foregoing the onus is on a plaintiff to aver its legal capacity. With regret

appellant has not and did not establish that it is a juristic person or that it was incorpo-

rated under the Company Decree (at the time of commencement of the action).” I

think the learned Justice, with respect, was in error when he said that: - “the onus is

on a plaintiff to aver its legal capacity.” I think the correct statement of the law is that

where the legal capacity of the plaintiff is challenged by the defendant, the onus is on

the former to prove his legal capacity. I believe it is the error that led their Lordships

astray. This burden to prove a matter can only be discharged by leading evidence,

oral or documentary, in proof of same. The plaintiff was not given the opportunity to

do so in this case, before her action was struck out. I think both Courts below are

wrong in the course taken by them.” – Per Ogundare, J.S.C. in Bank of Baroda v.

Iyalabani Co. Ltd. Suit No. S.C. 59/1998; (2002) 13 N.W.L.R. (Pt. 785) 551 at 589-

590.”

(2) “It is my respectful view that the addition of “Ltd.” or “Plc.” etc to the name of a

plaintiff or defendant would not necessarily denote that such a plaintiff is a legal

person. The true status of the plaintiff or the defendant is more likely to be known

during the trial when the status of either party is challenged by the opposing party.

This party came up for consideration in this Court in A.C.B. Plc v. Emostrade Ltd

(2002) 8 N.W.L.R. (Pt. 770) 501.” – Per Ejiwunmi, J.S.C. in Bank of Baroda v.

Iyalabani Co. Ltd. Suit No. S.C. 59/1998; (2002) 13 N.W.L.R. (Pt. 785) 551 at

574.”

(3) “Now in the instant case, it is manifest from the pleadings that the plaintiff brought

the action by merely describing itself as the Bank of Baroda. But the defendant

averred in paragraphs 3 and 4 of its statement of defence thus: - “Para 3.- The

defendant avers that the plaintiff is not a natural person and cannot sue in the name

in which it has brought this action without specifying who (if any) is the person or are

the persons who may be carrying on business under the name of the plaintiff, if such

name is a “business name” within the meaning of that expression in the Registration

of Business Names Act, 1961. Para. 4 – The plaintiff, as its name stands on the

statement of claim cannot be and is not a limited liability company within the Compa-

nies Act of Nigeria.” Now in striking out the claim at the stage of the proceedings, it

is clear that the learned trial Judge did not consider whether the parties had joined

issue with each other on the status of the plaintiff so as to resolve that issue. It would

appear that the learned trial Judge having failed to recognize that a dispute was