Law Simplified Video
Begin with our short Law Simplified video for a concise explanation of this legal topic. Then continue reading for a more detailed discussion below.
Introduction
The question of capacity to sue and be sued is fundamental in Nigerian law because it goes to the root of a court’s jurisdiction. If a party lacks capacity, the suit is incompetent and will be struck out, no matter how compelling the facts may be.
Nigerian courts have consistently held that where a party lacks legal capacity, the proceedings are incompetent and liable to be struck out.
Who Can Bring or Defend an Action?
Before commencing a court case, it is important to know who has the legal capacity to bring an action or defend an action. Not every person or entity can sue or be sued in exactly the same way. Questions of capacity can arise in relation to individuals, companies, minors, persons with disabilities, unincorporated associations, partnerships, public bodies and other entities.
Understanding who can properly be made a party to a court proceeding is therefore an important part of commencing a case.
If you are considering taking a dispute to court, our guide on How to File a Case in Court in Nigeria explains the general steps involved in commencing a case, from identifying the appropriate court and preparing the necessary documents to filing and serving the proceedings.
Capacity as a Jurisdictional Issue
Capacity to sue is a condition precedent to the court’s jurisdiction and should be addressed before trial. It can be raised at any stage, even on appeal. This was reiterated in CORPORATE MESSENGERS LTD v. UNDERWATER ENGINEERING (NIG) LTD & ANOR (2017) LPELR-45216(CA)and NAABBA v. DANTATA & ORS (2022) LPELR-58155(CA).
When challenged, the burden is on the claimant to prove capacity with oral or documentary evidence.
Who Can Sue or Be Sued
As a general principle, only natural persons (human beings) and juristic or artificial persons (e.g., incorporated companies, statutory corporations) can sue or be sued. This principle was reaffirmed in DAIRO & ORS v. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR-42573(SC)and UGBOGBO v. EGBORO & ORS (2024) LPELR-62810(CA).
However, certain non-juristic entities can sue or be sued in their own names (“eo nomine”) if given that right by statute, common law, or rules of court. Examples include:
Bodies incorporated by foreign law
Partnerships
Trade unions
Friendly societies
Foreign institutions authorized by their own laws to sue and be sued
Capacity of a Deceased Person to Sue or Be Sued
The law is settled that a dead person lacks the legal capacity to institute or defend an action. Any proceedings commenced against a deceased person are incompetent and liable to be struck out.
In IGP & ORS v. ALFA & ANOR (2023) LPELR-61193(CA), the Court of Appeal held:
“The position of the law is well settled that only the living has the requisite legal capacity to sue and be sued and that judgment given against a dead person is a nullity. See: PARTICIPANT PROPERTIES LTD V. FASHOLA & ORS (2023) LPELR-60145 (CA).……”
Per UCHECHUKWU ONYEMENAM, JCA (Pp 41 – 41 Paras E – F)
The implication of this principle is that where a cause of action relates to a deceased person, the proper parties to institute or defend the action are the personal representatives of the estate, such as executors or administrators duly appointed under the law.
Any suit filed in the name of, or against, a deceased person without substitution or proper representation is a nullity and cannot be cured by amendment.
Children and Persons Under Disability
A child cannot sue or be sued in their personal capacity in Nigeria. Under Order 13 Rule 11 of the FCT High Court Civil Procedure Rules 2025(similar provisions exist in other jurisdictions), Persons under legal disability (which includes a child), may sue or defend by their guardians or a guardian appointed for that purpose.
Suing on Behalf of an Organisation
The courts have held in several cases that the proper claimant in an action concerning a wrong done to a company is the company itself. Individual members or shareholders cannot ordinarily sue for such wrongs unless recognised exceptions apply.
In SALEH & ORS v. MATTAWALE & ORS (2022) LPELR-58714(CA), the court relied on the principle of FOSS v. HARBOTTLE to hold that:
“It may also be added that the Appellants should not make themselves to cry more than the bereaved, because under the principle in the famous case of FOSS V. HARBOTTLE, where a wrong is done to an entity like the PDP or any incorporated association, the party to sue for redress is the party that claims to have been injured or wronged.” Per ALI ABUBAKAR BABANDI GUMEL, JCA (Pp 67 – 67 Paras A – C)
Statutory Bodies and Implied Capacity
Ordinary, creation by statute does not automatically confer legal personality. A statutory body can only sue or be sued if expressly or impliedly empowered. However, Courts may imply such capacity to prevent injustice, as in KWAGE & ORS v. UPPER SHARIA COURT GWANDU & ORS (2017) LPELR-42508(CA)where the Court held that:
“The position of the law as enunciated by the apex Court …….. is that the creation by Statute alone does not give a statutory body a separate legal personality unless the Statute expressly or impliedly gives the body the right to sue or defend an action in its own name. However, such right could be implied where the exercise of powers under the Statute would result in injustice to a party to an action and that the injustice would be irreparable unless the statutory body’s power to defend the party’s action is implied in the circumstances of the case, could clearly not be doubted. See the cases of CARLEN (NIG) LTD vs. UNIJOS (1994) 1 NWLR (PT. 323) 63; THE PROVOST ALVAN IKOKU COLLEGE OF EDUCATION vs. AMUNEKE (1991) 9 NWLR (PT. 213) 49. This will of course, be the case where a statutory body is not given express powers to defend or sue in an action but it nevertheless exercises its statutory powers in such a way that harms or infringes the rights of a party. What this in essence translates, is that very often than not, legal personality is usually implied in the activities of bodies or persons in order to obviate potential injustice to a party. See the case of CHIEF ANDREW THOMAS vs. LOCAL GOVERNMENT SERVICES BOARD (Supra) where the Local Government Services Board, although unincorporated was held to be capable of suing and be sued. The Supreme Court per BRETT, JSC held inter alia, thus; “We reject the submission that a statutory body with functions like those of the Local Government Services Board is not liable to be sued for declaration and we do so more readily since the statutory provisions relating to the Appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings”. Similarly, in the case of KPEBIMOH vs. THE BOARD OF GOVERNORS, WESTERN IJAW T.T.C. (1966) NMLR 130 the Court held that the Board of Governors of the college, though an unincorporated body, so long as it is empowered to perform certain statutory function, which could result in injury is said to have implied powers to sue and be sued in a Court of law. In resolving a similar dispute in the case of ANOZIA vs. ATTN-GEN. LAGOS STATE; THE JUDICIARY, LAGOS STATE; THE CHIEF JUDGE, LAGOS STATE and THE CHIEF REGISTRAR, LAGOS STATE (2010) LPELR-3778 this was what this Court per SAULAWA, JCA had to say on the subject; “It is generally accepted that bodies created under the Constitution and duly conferred with certain statutory powers and duties are juristic persons even though established not expressly so designated. See IBRAHIM vs. JUDICIAL SERVICE COMMISSION (1998) 12 SCNJ 255, wherein the Supreme Court held that the Judicial Service Committee, one of the four statutory bodies established at the State level under Section 178(1) of the 1979 Constitution is a Corporation aggregate and/or legal personality capable of suing and being sued.” Per FREDERICK OZIAKPONO OHO, JCA (Pp 18 – 20 Paras B – F)
Suing a Person Operating Under a Business Name
Nigerian law recognises that a person carrying on business in a name other than their personal name may be sued in that business name, even where the business name is not registered.
In IPY RICE MILL LTD v. ITF GOVERNING COUNCIL (2024) LPELR-62300(CA), the Court of Appeal, relying on the Supreme Court decision in IYKE MEDICAL MERCHANDISE V. PFIZER INC. & ANR (2001) LPELR-1579(SC), held:
“The Supreme Court in IYKE MEDICAL MERCHANDISE V. PFIZER INC. & ANR (2001) LPELR – 1579 (SC) per Uwaifo, JSC said: It could happen that a person may carry on business in a name other than his name but may fail to register it as required under Part B – Business Names – of the Companies and Allied Matters Act, 1990. Such persons undoubtedly come within those who conceal their names. The solution to such device by that type of persons can be found in the rule that allows suing them in the name in which they carry on business. And this is intended to obviate obstacles against actions against them if their real name had first to be ascertained. So the question of the production of the Certificate of Registration of the business name as submitted by learned Counsel for the appellant would not arise and becomes a non-issue. If it happens that the business name had not in fact been registered, that would be a contravention of S. 667 of the Act and there are penalties provided. That does not provide immunity against being sued in that name, whatever its status, in accordance with the said Order 14 R. 42 applicable in the Federal High Court. Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm’s name; and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply. The first point to note is that such a person may be sued, but cannot sue in his trade name. See IYKE MEDICAL MERCHANDISE V. PFIZER INC. & ANR (supra). The appellant, it would appear, is among those that conceal their names to hide under non-juristic personality. It is very clear from the decision supra that what they did will only be against them. The lower Court rightly relied on IYKE MEDICAL MERCHANDISE (supra) in its decision.”
Per USMAN ALHAJI MUSALE, JCA (Pp 20 – 21 Paras A – E)
The principle that emerges is clear:
A person doing business under a trade or business name may be sued in that name. Failure to register the business name does not confer immunity from being sued. However, such a person cannot ordinarily institute an action in that business name.
This rule prevents individuals from evading liability by operating under non-juristic or concealed identities.
Failure to Prove Capacity to Sue
The law is settled that a party must not only possess capacity to sue but must also plead and prove such capacity. Failure to do so is fatal to the action.
In CROSSDALE DEVT CO. LTD & ORS v. PETER & ORS (2021) LPELR-53313(CA), it was held that where a party lacks capacity or when such capacity is not demonstrated in the pleadings, the action becomes incompetent and the Court lacks the requisite jurisdiction to entertain the suit.
In EZE v. OBASI (2024) LPELR-73357(CA), the Court of Appeal held:
“It is accepted that facts are the fountainhead of the law. The Appellant did not also claim to have sued the Respondent over the properties of his deceased brother as his ‘Executor or Administrator’ of his Estate. This failure is fatal to the capacity of the Appellant to institute the suit against the Respondent before the lower Court. See Union Bank Of Nigeria Plc V. Estate Of Late Clement Ogeh (2018) LPELR – 46701 (CA).”
Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 28 – 29 Paras D – A)
The implication of this decision is that:
Where a party sues in a representative capacity, such capacity must be expressly pleaded;
The party must also prove the authority to act in that capacity;
Failure to establish this will render the action incompetent, regardless of the merits of the case.
Practical Examples of Capacity Issues
Examples where capacity issues commonly arise include:
A person suing on behalf of a deceased person without obtaining letters of administration.
An unregistered association attempting to sue without legal recognition.
A shareholder suing in their personal name for a wrong done to a company.
These situations often lead courts to strike out the action for incompetence.
Disclaimer:
This article is for general informational purposes only and does not constitute legal advice. For advice on specific matters relating to capacity to sue and be sued in Nigeria, consult a qualified legal practitioner.
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