The law is trite that only natural or juristic persons are competent to sue or be sued. The term “natural person” denotes a human being, while a juristic person is an entity, an artificial or unnatural person that is duly allotted identification by law as possessing the rights and duties of a human being.[1] Where either of the parties is not a legal person capable of exercising legal rights and obligations in law, the action is plagued by incompetence and liable to be struck out on account of want of legal personality.[2] In effect, a non-existing person, natural or legal personality, cannot institute an action nor will an action be allowed to be maintained against a Defendant, who as sued, is not a legal person.[3]
Also, a person must have legal personality to sue and be sued. Some categories of persons are generally non sui juris ie considered by law to have legal disability, and thus, can only may sue or defend through their trustee, executor or guardians.[4] Such persons include children, mentally retarded persons, mentally ill persons and persons who are judged mentally incompetent because of illness, age, or infirmity.
– Preliminary objection on legal capacity
Preliminary objections on legal capacity takes priority because it is well settled that such a preliminary objection, if upheld, will invariably lead to the action being struck out.[5]
– When jurisdiction is vested on the court
It is well settled that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on the matter, there must be a competent Plaintiff and a competent Defendant, and where either of them is not a legal person, the action is liable to be struck out for being incompetent.[6]
– Where a legal person is made a party alongside a non-legal person
Where a legal person is made a party alongside a non-legal person, the position of the law is that once there is a Plaintiff or Defendant with requisite juristic capacity to sue and be sued, such an action would be properly constituted as to Parties, and the action cannot be defeated on the ground of want of capacity to sue and be sued. For instance, this will apply in cases where the first plaintiff is the Legal Practitioner’s Disciplinary Committee was made a party along with the Nigeria Bar Association.[7]
[1]George and others v Abraham and Others (2017) LPELR-43060(CA) 12-14 paras B.
[2]Agbonmagbe Bank Ltd. v General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Ataguba and Company v Gura Nig Ltd(2005) 8 NWLR (Part 927) 429; Ojo v Fadeyi and another (2018) LPELR-44164(CA) 16-17, paras A-B; Administrators/Executors of theEstate of Abacha v Eke–Spiff and others (2009) 7 NWLR (Pt. 1139) 97; Interdrill (Nig) Ltd v U.B.A. Plc (2017) 13 NWLR (Pt 1581) 52; Dairo v. Regd. Trustees, T. A. O.., Lagos (2018) 1 NWLR (Pt 1599) 62; Bajehson v Otiko (2018) 14 NWLR (Pt 1638) 138; Socio-Political Research Dev. v Min., FCT (2019) 1 NWLR (Pt 1653) 313; Moses v NBA (2019) 8 NWLR (Pt. 1673) 59; Persons, Name Unknownv. Sahris Int’l Ltd. (2019) 13 NWLR (Pt 1689) 203.
[3]Access Bank v Agege Government (2016) LPELR 40491(CA) 16-17, paras. F-C; Uber Technologies Services Nigeria Limited v Mr. Joshua Ayodele Ajayi (2020) LPELR-50807 (CA) 12-20 paras F.
[4] Reference should be made to the relevant rules of court on persons under legal disability.
[5]Admin/Execs, Estate, Abacha v Eke-Spiff and others. (2009) 7 NWLR (Pt 1139) 975C.
[6]Agbonmagbe Bank v General Manager, G. B. Ollivant Ltd.and another. (1961) ALL NLR 116.
[7]Nigerian Nurses Assoc. and another v A-G Fed. (1981) 11 – 12 SC 1.