Legal Personality’ means “the capacity of a human being or a judicial entity to be either a subject or an object of both of jural relations”. It is the legal capacity of the person or entity to own or possess “things” and to maintain claims or assert rights and liberties in respect of them against another and the capacity to sustain and satisfy claims by others against himself or itself in those relationship.
Salmond posited that; “any being whom the law regards as capable of rights and duties whether a human being or not, and in the event that such a being is not so capable, such one is not regarded as a person even though he be a man”. He stressed further that“persons are the substances of which rights and duties are their attributes and it is only in this regard that persons possess judicial significance, and this is the exclusive point of view from which personality receives legal recognition”
As part of the ratio in the case of Gani Fawehinmi v. N.B.A, the question which was raised was, “who is a legal person?” The judge answered this by saying;
“a person is the object of rights and duties that means a person is capable of having rights and of being liable to duties in contradistinction to a thing which is always the subject of rights and duties.”
Hence, the legal concept of human being is simply a multitude of claims, duties, liberties, etc., treated as a unit. If therefore the law invest an artificial entity like corporation with a ‘multitude of claims, duties, liberties, etc., it likewise invests it with the status of a legal person or a persona. The position is then that the legal personality is an artificial creation of law. It should be noted therefore that not all persons possess the capacity to be regarded as legal persona. i.e., lunatics, infants and idiots, possess limited capacity of being regarded as legal personality. However, their claims and rights can be made by close friends or relatives, part of which they may also appear and the court will grant their prayers thereby conferring personality on them.
The deduction from the foregoing is that the word “personality” in law has a wider connotation, being an exclusive creation of law through its legislation process and may include any object either animates or inanimate upon which the law bestows personality as long as such an entity is capable of bearing rights and duties. Then if the law so decides, personality may be conferred on any entity. Thus legal personality refers to the particular device by which the law creates or recognises units to which it ascribes certain powers and capacities.
There are two variations of legal personality, viz; legal personality under international law and legal personality under national law.
International legal personality:
At the international level, only full sovereign states are recognised as legal persons and are accorded legal personalities. Indeed, states are the only subjects of international law and are only recognised as legal entity which have rights and duties and can have locus standi before the International Court. This fact is evident by the provision of Article 34 of the ICJ Statute which provides that “only States may be parties in cases before the court”
To a greater extent, individuals are merely objects of legal system in international law. Also, failed states cannot be recognised as having the full capacities by which the law will ascribe legal personality to.
National Legal Personality:
Under the municipal law, the perfect assumption is that human beings are legal persons. This is generally agreed to be a self-evident fact by jurists down the ages.
However, apart from human beings, corporations can also be regarded as legal entity. This then distinctly laid two types of juristic persons. These are “Corporation sole” and “Corporate Aggregate”
Corporation Sole: This is an instance where two persons exist under the same name by having a dual character, in one instance as a human being and the other the corporate sole which is the creation of law and capable of existing in perpetuity until disallowed by the same law. In the case of Gani Fawehinmi v. N.B.A., a corporate sole was defined as “a body politic having perpetual succession, constituted in a single person, who, in right of some office or function has a capacity to take, purchase, hold and dispose (and in some particular instances, under qualifications and restrictions introduce by statute, power to alienate) lands, tenements and hereditaments and now, it would seem, also to take and hold person’s property to him and his successors in such office forever. The succession being perpetual, but not always uninterruptedly continuous; that is, there may be and often are, periods in the duration of a corporation sole, occurring irregularity in which there is a vacancy or no one in existence in whom the corporation resides and is visibly represented.
In other words, corporation sole is an incorporated series of successive persons. It consists of a single person who is personified and regarded by law as a legal person. A single person, who in exercise of some offices or functions, deals in the legal capacity and has rights and duties.
Examples of corporation sole are;
Sovereign – crown, king, emperor;
The post-master general;
The secretary of the state;
The minister for education;
Public trustee;
Archbishop; etc.
The development of corporate sole as a form of juristic personality was as a result of social necessity, meant to resolve problem connected with the devolution of land to be held in official position.
A corporation sole is an illustration of “double capacity”. For instance, the President of Nigeria can present himself as the constitutional head of the country and he can confer rights and duties on himself as an individual.
The corporation sole technique enables the current incumbent to acquire property for the benefit of his known and unknown successors who are also being clothed with the capacity to enter into contractual relations which benefit or bind them. They can also sue for any damage to the corporation property even though such damage occurred while the property was still in the hands of their predecessors.
Corporate Aggregate: This is often referred to as an incorporated group of co-existing persons having common or collective interests, which are generally business interests. It is defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form and vested by the policy of the law with the capacity of acting in several respects as individual particularly of taking and granting of privileges and immunities in common and of exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers conferred upon it either at the time of its creation of at any subsequent period of existence.
A corporate aggregate is an “association of human beings united for the purpose of forwarding their certain interests.
The principal and usual jural units to which the law has ascribed legal personality are the following:
Human beings;
Companies incorporated under the various Companies Acts;
Trade Unions;
Partnerships; and
Friendly societies
The main objective of this technique is to facilitate the investing of certain powers in collective enterprises. E.g., the group, though an artificial person, is treated as having the capacity to sue or be sued in its own name, to receive or grant property, to enter into contractual relations, to enjoy certain privileges and immunities and to exercise certain social and political rights which are more or less coterminous with those of natural persons.
KINDS OF PERSONS
Law recognises only two kinds of persons;
Natural Person
Artificial Person
Natural Persons
A natural person is a living human being; the offspring of that man created in the Garden of Eden and gave birth to by Eve his wife. In the case of GaniFawehinmi v. N.B.A, a natural person was defined as a human person who has life and blood in him or her, whether a citizen of one state or another given protection by law and endowed with human qualities.
It should however be noted that not all living human beings are recognised as persons in law.
According to HOLLAND, “a natural person is such a human being as is regarded by the law as capable of rights and duties as having a status.
The first requisite of a natural person is that he must be recognised as possessing a sufficient status which will hence enable him to possess rights and duties.
Another requisite is that, he must possess essentially human characteristics. For instance, before the abolition of slavery, the slave were considered as ‘res’ and were devoid of any legal personality for they could have no rights and duties. Also, lunatics and infants have only a restricted legal personality; they do not have civil rights such as right to vote etc.
Artificial Persons
These are imaginary beings to whom personality is attributed by law by a way of fiction, whereas it does not in fact exist.
Juristic persons are also defined as these things, mass or property, group of human beings or an institution upon whom the law has conferred a legal status and who are in the eye of the law capable of having rights and duties as natural persons.
Law attributes or ascribes by legal fiction, personality to some real thing. A fictitious thing is that which does not exist in fact but which is deemed to exist in the eye of the law.
There are two essentials of a legal person and these are;
The corpus which in the body into which the law infuses the animus, will or intention, of a fictitious personality
The animus which is the personality or the will of the person.
THEORIES OF JURISTIC PERSONALITY
FICTION THEORY
According to this theory, the ascription of a legal personality to artificial things and the inanimate objects is only a fiction; they are not persons as such but are merely treated as if they are persons. What therefore happens is that these artificial things are deemed to conform to the pattern or character of human beings for certain procedural purposes. This theory appears to be historically flawless because law was originally concerned with human persons and artificial persons were only created at a later stage. In Nigerian customary law, the concept of artificial legal person was a late Development and was made to imitate the characteristics of human beings. For instance, some idols are endowed with the right to exist in perpetuity, that is, right to immortality and can't be destroyed without consequences befalling those who carry out the physical destruction. Other idols or gods are deemed capable of eating, drinking and even marrying. For example, the fish-goddess (Yemoja) in the Osun river at Oshogbo has the right to alert and drink with the town's Oba annually under a customary law. These heuristic persons are also deemed to owe certain duties to the local communities worshipping them, e.g., to make their farm yield high, to ensure peace among others.
However, when these idols fail in the performance of their presumed obligations to their devotees, instead of being liable for breach of contract, the irony is that an intense sacrifice is carried out by means of better and sometimes, bloodier libations and sacrifices is usually embarked on by the people as if to underline the immunity or non-liability of the idol. All of these demonstrate that true and genuine social relations cannot vest in these so-called.
The fiction theory canal so be explained in relation to the personality conferred on a corporation. To this effect, the law is of the view that "besides men or natural persons, the law knows as subjects of proprietary rights certain fictitious, artificial or juristic persons, as one species of this class is known as corporation.
In conferring personality on these artificial bodies, the law employs a double fiction. Fictionally, the law cloths the corporation with legal personality and by the same method, it attributes to the corporation, the will of its own aside from that of the member constituting the corporation. This was well illustrated in the case of Salomon v. Salomon (1887) AC 22. Where it was held that the theory of corporate personality which lays down the proposition of law that the company is, in law, a distinct and separate personality from its member.
2. CONCESSION THEORY
This theory is merely different from the fiction theory and is held by the same jurists. Its position is that corporate bodies within the State have no legal personality except the dignity of being a juristic person is conferred on them by the state. The only difference between both theories is that for the concession theory, law is identified with the state but for the fiction theory, it is not so.
The concession theory is a politically dangerous one as the theory is attributed to the State unlimited power to deal with group association. Also, the theory does not explain where the state gets its own legal personality from or who conceded it's own legal personality to it.
To a greater extent, the concession theory is a truism in that, it correctly depicts the position that juristic personality can only be conferred by the state through its law making process.
The concession theory unarguably, is inimical because it is attributed to the State unlimited power to deal with group of association as it deems fit. It was exercise by Wolff to deny the principle of freedom of association.
3. REALIST THEORY
The realist theory is of a German origin and it has the support of prominent jurist like Gierke, Beseler, Bluntschli, Maitland, Pollock, etc.
According to this theory, what exists in fact exists in law. In reality, the function of the State in the matter is declaratory, permissive and regulative rather than creative or constitutive. This theory explains that the legal personality of associations only and is not applicable to artificial bodies having no human members.
To the adherents of this theory, a corporation is not a figment of imagination, but it exists in reality. Its existence in reality does not mean that a corporation is in reality, an actual person; rather it is seen as a representation of physical realities that exist independently without the authority of the state but recognized and create by State.
4. BRACKET THEORY
Bracket theory is an analytical approach to legal personality. According to the theory, only humans are persons.
According to Hohfeld on this theory, he drew distinction between human being and juristic persons. Juristic persons are the creation of arbitrary rules of procedure. Only human beings have claims, duties, powers and liabilities and transactions are conducted by them because they are the ones who are ultimately entitled and responsible at law.
As further analysis, this theory posits that members of a corporation are the only bearers of rights and are bound by duties. Thus, the conferment of juristic personality means putting a bracket round three members in order to treat them as a unit and this is done for the purpose of convenience. The implication of this theory is that the law can remove the bracket at anytime and can look behind the entity to discover the real state of affairs.
5. PURPOSE THEORY
According to this theory, the term "person" is applicable to only human beings since only humans have the capacity to be subjects of jural relations. Those non human beings ostensible treated as juristic persons are not persons but merely "subject, less property" created by man for the achievement of certain objectives, but, jural relations cannot vest in them. Thus, whereas real person can owe duties towards these juristic persons, the latter cannot owe any duty towards to former.
Salmond posited that; “any being whom the law regards as capable of rights and duties whether a human being or not, and in the event that such a being is not so capable, such one is not regarded as a person even though he be a man”. He stressed further that“persons are the substances of which rights and duties are their attributes and it is only in this regard that persons possess judicial significance, and this is the exclusive point of view from which personality receives legal recognition”
As part of the ratio in the case of Gani Fawehinmi v. N.B.A, the question which was raised was, “who is a legal person?” The judge answered this by saying;
“a person is the object of rights and duties that means a person is capable of having rights and of being liable to duties in contradistinction to a thing which is always the subject of rights and duties.”
Hence, the legal concept of human being is simply a multitude of claims, duties, liberties, etc., treated as a unit. If therefore the law invest an artificial entity like corporation with a ‘multitude of claims, duties, liberties, etc., it likewise invests it with the status of a legal person or a persona. The position is then that the legal personality is an artificial creation of law. It should be noted therefore that not all persons possess the capacity to be regarded as legal persona. i.e., lunatics, infants and idiots, possess limited capacity of being regarded as legal personality. However, their claims and rights can be made by close friends or relatives, part of which they may also appear and the court will grant their prayers thereby conferring personality on them.
The deduction from the foregoing is that the word “personality” in law has a wider connotation, being an exclusive creation of law through its legislation process and may include any object either animates or inanimate upon which the law bestows personality as long as such an entity is capable of bearing rights and duties. Then if the law so decides, personality may be conferred on any entity. Thus legal personality refers to the particular device by which the law creates or recognises units to which it ascribes certain powers and capacities.
There are two variations of legal personality, viz; legal personality under international law and legal personality under national law.
International legal personality:
At the international level, only full sovereign states are recognised as legal persons and are accorded legal personalities. Indeed, states are the only subjects of international law and are only recognised as legal entity which have rights and duties and can have locus standi before the International Court. This fact is evident by the provision of Article 34 of the ICJ Statute which provides that “only States may be parties in cases before the court”
To a greater extent, individuals are merely objects of legal system in international law. Also, failed states cannot be recognised as having the full capacities by which the law will ascribe legal personality to.
National Legal Personality:
Under the municipal law, the perfect assumption is that human beings are legal persons. This is generally agreed to be a self-evident fact by jurists down the ages.
However, apart from human beings, corporations can also be regarded as legal entity. This then distinctly laid two types of juristic persons. These are “Corporation sole” and “Corporate Aggregate”
Corporation Sole: This is an instance where two persons exist under the same name by having a dual character, in one instance as a human being and the other the corporate sole which is the creation of law and capable of existing in perpetuity until disallowed by the same law. In the case of Gani Fawehinmi v. N.B.A., a corporate sole was defined as “a body politic having perpetual succession, constituted in a single person, who, in right of some office or function has a capacity to take, purchase, hold and dispose (and in some particular instances, under qualifications and restrictions introduce by statute, power to alienate) lands, tenements and hereditaments and now, it would seem, also to take and hold person’s property to him and his successors in such office forever. The succession being perpetual, but not always uninterruptedly continuous; that is, there may be and often are, periods in the duration of a corporation sole, occurring irregularity in which there is a vacancy or no one in existence in whom the corporation resides and is visibly represented.
In other words, corporation sole is an incorporated series of successive persons. It consists of a single person who is personified and regarded by law as a legal person. A single person, who in exercise of some offices or functions, deals in the legal capacity and has rights and duties.
Examples of corporation sole are;
Sovereign – crown, king, emperor;
The post-master general;
The secretary of the state;
The minister for education;
Public trustee;
Archbishop; etc.
The development of corporate sole as a form of juristic personality was as a result of social necessity, meant to resolve problem connected with the devolution of land to be held in official position.
A corporation sole is an illustration of “double capacity”. For instance, the President of Nigeria can present himself as the constitutional head of the country and he can confer rights and duties on himself as an individual.
The corporation sole technique enables the current incumbent to acquire property for the benefit of his known and unknown successors who are also being clothed with the capacity to enter into contractual relations which benefit or bind them. They can also sue for any damage to the corporation property even though such damage occurred while the property was still in the hands of their predecessors.
Corporate Aggregate: This is often referred to as an incorporated group of co-existing persons having common or collective interests, which are generally business interests. It is defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form and vested by the policy of the law with the capacity of acting in several respects as individual particularly of taking and granting of privileges and immunities in common and of exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers conferred upon it either at the time of its creation of at any subsequent period of existence.
A corporate aggregate is an “association of human beings united for the purpose of forwarding their certain interests.
The principal and usual jural units to which the law has ascribed legal personality are the following:
Human beings;
Companies incorporated under the various Companies Acts;
Trade Unions;
Partnerships; and
Friendly societies
The main objective of this technique is to facilitate the investing of certain powers in collective enterprises. E.g., the group, though an artificial person, is treated as having the capacity to sue or be sued in its own name, to receive or grant property, to enter into contractual relations, to enjoy certain privileges and immunities and to exercise certain social and political rights which are more or less coterminous with those of natural persons.
KINDS OF PERSONS
Law recognises only two kinds of persons;
Natural Person
Artificial Person
Natural Persons
A natural person is a living human being; the offspring of that man created in the Garden of Eden and gave birth to by Eve his wife. In the case of GaniFawehinmi v. N.B.A, a natural person was defined as a human person who has life and blood in him or her, whether a citizen of one state or another given protection by law and endowed with human qualities.
It should however be noted that not all living human beings are recognised as persons in law.
According to HOLLAND, “a natural person is such a human being as is regarded by the law as capable of rights and duties as having a status.
The first requisite of a natural person is that he must be recognised as possessing a sufficient status which will hence enable him to possess rights and duties.
Another requisite is that, he must possess essentially human characteristics. For instance, before the abolition of slavery, the slave were considered as ‘res’ and were devoid of any legal personality for they could have no rights and duties. Also, lunatics and infants have only a restricted legal personality; they do not have civil rights such as right to vote etc.
Artificial Persons
These are imaginary beings to whom personality is attributed by law by a way of fiction, whereas it does not in fact exist.
Juristic persons are also defined as these things, mass or property, group of human beings or an institution upon whom the law has conferred a legal status and who are in the eye of the law capable of having rights and duties as natural persons.
Law attributes or ascribes by legal fiction, personality to some real thing. A fictitious thing is that which does not exist in fact but which is deemed to exist in the eye of the law.
There are two essentials of a legal person and these are;
The corpus which in the body into which the law infuses the animus, will or intention, of a fictitious personality
The animus which is the personality or the will of the person.
THEORIES OF JURISTIC PERSONALITY
FICTION THEORY
According to this theory, the ascription of a legal personality to artificial things and the inanimate objects is only a fiction; they are not persons as such but are merely treated as if they are persons. What therefore happens is that these artificial things are deemed to conform to the pattern or character of human beings for certain procedural purposes. This theory appears to be historically flawless because law was originally concerned with human persons and artificial persons were only created at a later stage. In Nigerian customary law, the concept of artificial legal person was a late Development and was made to imitate the characteristics of human beings. For instance, some idols are endowed with the right to exist in perpetuity, that is, right to immortality and can't be destroyed without consequences befalling those who carry out the physical destruction. Other idols or gods are deemed capable of eating, drinking and even marrying. For example, the fish-goddess (Yemoja) in the Osun river at Oshogbo has the right to alert and drink with the town's Oba annually under a customary law. These heuristic persons are also deemed to owe certain duties to the local communities worshipping them, e.g., to make their farm yield high, to ensure peace among others.
However, when these idols fail in the performance of their presumed obligations to their devotees, instead of being liable for breach of contract, the irony is that an intense sacrifice is carried out by means of better and sometimes, bloodier libations and sacrifices is usually embarked on by the people as if to underline the immunity or non-liability of the idol. All of these demonstrate that true and genuine social relations cannot vest in these so-called.
The fiction theory canal so be explained in relation to the personality conferred on a corporation. To this effect, the law is of the view that "besides men or natural persons, the law knows as subjects of proprietary rights certain fictitious, artificial or juristic persons, as one species of this class is known as corporation.
In conferring personality on these artificial bodies, the law employs a double fiction. Fictionally, the law cloths the corporation with legal personality and by the same method, it attributes to the corporation, the will of its own aside from that of the member constituting the corporation. This was well illustrated in the case of Salomon v. Salomon (1887) AC 22. Where it was held that the theory of corporate personality which lays down the proposition of law that the company is, in law, a distinct and separate personality from its member.
2. CONCESSION THEORY
This theory is merely different from the fiction theory and is held by the same jurists. Its position is that corporate bodies within the State have no legal personality except the dignity of being a juristic person is conferred on them by the state. The only difference between both theories is that for the concession theory, law is identified with the state but for the fiction theory, it is not so.
The concession theory is a politically dangerous one as the theory is attributed to the State unlimited power to deal with group association. Also, the theory does not explain where the state gets its own legal personality from or who conceded it's own legal personality to it.
To a greater extent, the concession theory is a truism in that, it correctly depicts the position that juristic personality can only be conferred by the state through its law making process.
The concession theory unarguably, is inimical because it is attributed to the State unlimited power to deal with group of association as it deems fit. It was exercise by Wolff to deny the principle of freedom of association.
3. REALIST THEORY
The realist theory is of a German origin and it has the support of prominent jurist like Gierke, Beseler, Bluntschli, Maitland, Pollock, etc.
According to this theory, what exists in fact exists in law. In reality, the function of the State in the matter is declaratory, permissive and regulative rather than creative or constitutive. This theory explains that the legal personality of associations only and is not applicable to artificial bodies having no human members.
To the adherents of this theory, a corporation is not a figment of imagination, but it exists in reality. Its existence in reality does not mean that a corporation is in reality, an actual person; rather it is seen as a representation of physical realities that exist independently without the authority of the state but recognized and create by State.
4. BRACKET THEORY
Bracket theory is an analytical approach to legal personality. According to the theory, only humans are persons.
According to Hohfeld on this theory, he drew distinction between human being and juristic persons. Juristic persons are the creation of arbitrary rules of procedure. Only human beings have claims, duties, powers and liabilities and transactions are conducted by them because they are the ones who are ultimately entitled and responsible at law.
As further analysis, this theory posits that members of a corporation are the only bearers of rights and are bound by duties. Thus, the conferment of juristic personality means putting a bracket round three members in order to treat them as a unit and this is done for the purpose of convenience. The implication of this theory is that the law can remove the bracket at anytime and can look behind the entity to discover the real state of affairs.
5. PURPOSE THEORY
According to this theory, the term "person" is applicable to only human beings since only humans have the capacity to be subjects of jural relations. Those non human beings ostensible treated as juristic persons are not persons but merely "subject, less property" created by man for the achievement of certain objectives, but, jural relations cannot vest in them. Thus, whereas real person can owe duties towards these juristic persons, the latter cannot owe any duty towards to former.
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