JUSTICE

Justice derives from the Latin word justitian or Justus which means ‘lawful, rightful,
and just’. It encourages the following:
1. The quality of being right
2. Validity and rightfulness
3. Reason
4. Honesty, impartiality and fairness
5. To uphold right and just through authority and power;
6. Proper adjudicatory process;
7. Reward of virtue and punishment of valid.

This shows that justice is the corner stone of human coexistence. That was why St.
Augustine echoed that: ‘Remove justice, and what are kingdoms but gangs of criminals
on a large scale’. Therefore, the need for justice is indispensable in a society. Optua
J.S.C. stated that ‘ justice is the Oil that lubricates the wheels of social machine,
removing the rust of excesses and arbitrariness, balancing rights with duties; and
powers with safeguards, so that neither rights nor powers shall be exceeded or abused’.

In the pursuant of justice, the rule of law remains the conditions, for the citizens to
achieve security, economic stability, and all the calculability in the affairs of life. In the
corridors of law and justice, a Judge cannot rightly behave like Hermeric King who
claims to have received his themestes direct from the god Zeus, nor could the Judge
behave with impunity like an oriental Cadi (kadi) whose decision is assumed to flow
from esoteric wisdom. Rather the province of justice is to preserve and regulate rights
(both legal and social rights). In this wise, the aim of law is to promote justice.
According to Aristotle, the rule of law is preferable to that of any individual. Hence,
the end of law is to establish an order according to justice. According to Prof. Nnabue,
‘this attribute of justice is so important to all nations as the basis of their togetherness
and co-existence. For this reason, most national constitutions and National Anthems
pay eloquent testimonies to the desire for justice. Obviously, law must be assimilated
to justice and law without justice is a mockery, if not a contradiction.

However, for justice and peace to reign in any country will highly depend on these
variables; ie;
1. The quality and sanctity of laws passed;
2. The judge and his interpretation of the law, and
3. The application of law in such a country
It must also be stated that justice can only prevail in a country when in the corridors of
justice; there are no sirens of wealth, position and influence, or power, that is to say:
a. Every policy is subjected to the same litmus test.
b. There is no rule for the rich and another for the poor (equality before the law).
c. Invasion of property and law is subjected to the same rule, principle and law.
d. Every injury is compensated in the same way.

It has been stated that justice in a legal system can only be located within the confines
of the principles and rule of law. Therefore there will be justice if the principles
of fair hearing (audi alterem patem, and nemo judex in causa sua) are vigorously
pursued. Above all, all persons under such system must be treated with some
measure of equality. This is the purport of the phrase ‘fiat justitia Ruat Coelem’
has continued to show the human desire and quest for justice at all cost. Justice
implies the rational ordering of things concerning common good..

The concept of justice has been hinged on distribution of resources. Aristotle sought to
draw a distinction between distribution and corrective justice. He insisted that the
ability of the law to maintain the same proportion between persons is a proper concept
of justice.

 Distributive justice refers to fair division of benefits and burdens-thereby giving

each person according to his just desert (Ouod altri Debitur Tam Quam sunn).
 Corrective justice involves the maintenance of fair equilibrium, ie, the
redistribution or redressing of any unfair distribution. NB: While the former
relates to policy aspect of the ordering of the society, the latter relates to the
work of the courts. This analysis gives rise to procedural and substantive justice.
In State vs. Gwonto, it was held that the law, both substantive and procedural
must be employed for the sole purpose of doing justice to the parties before the
court.
Procedural justice means ‘due process of the law’ which when explained over–laps
with the idea of rule of law and includes:
 Promulgation of the law;
 Publicity of the law;
 Punishment of offenders under the law;
 Treatment of all fairly and equally ;
 Following all procedures.
Substantive justice relates to the content of the law and in this sense, serve as a scale to
measure the value of the law. It includes such questions as :
 Is the law acceptable?
 Is the legal system legitimate?
 Is the political system legal?
 Is it how society should be organized?

NB: That a law may be procedurally correct, but substantively wrong (e.g the apartheid
regime in South Africa).

There is also the collectivist and individualistic conception of justice. The collectivists
see justice from the maximization of the interest of the society above that of individual.
Collectivists (e.g Posner) argue that the imposition of liability normally depends on
what is more efficient economically. Posner asserted that the common law method is to
allocate responsibilities between people engaged in interacting activities in such a way
as to maximize the joint value, or what amounts to the same thing, minimize the joint
cost of the activities. On the other hand, the individualists argue that a society is the
sum of the individuals who constitute it. Therefore, the conception of justice would be
reviewed from the stand point of individual interest.

Rawl’s claims on justice is that it contemplates justice and fairness. Fairness here
connotes neutrality, what is just, without bias, or partiality. Hence, he stated that justice
is the first virtue of social institution as truth is of a system of thought. Summary of his
conception of justice are:
1. The maximization of liberty
2. Equality for all
3. Fair equality of opportunities

Hence, in writing a judgment, the underlying factor is fairness to the parties to avoid a
miscarriage of justice – see Abdulahi v State (1975) 9 NWLR (Pt. 417) P.115.

There is also a conception of justice which distinguishes between particular and

universal justice. The real appreciation of justice makes it a court central activity. The
court must do justice, hence the phrase ‘court of justice’. NB: That the judicial oath
does not enjoin Judges simply to do justice, nor to simply apply the law. Rather,
Judges are expected to do justice according to law. This means that justice does not
exist outside of the law. In Unokan Ent. Ltd. v Omuvmie (2005) 23 WRN, 165 at 281,
it was held that ‘courts have a duty to administer justice to all manner of people
without showing favour to one party or disfavoUr to the other side’. If the court fails in
this task, justice is riddled. Hence, in all judicial processes, fair hearing must be
embraced as a sine qua non for justice. What the court normally considers is ‘will it be
just’, ‘will it be equitable to allow a contract induced by fraud to stand’. It has been
held that ‘the court does not now stand akimbo to watch helplessly in a situation where
justice will lie prostrate and be trampled upon, simply because mere technicality rule
must be upheld. See Ecodrill Nig. Ltd. v Ofotokun (2005) 16 WRN P.83.

NB: That although distributive justice prescribes equality, it should be understood to

mean not absolute equality of all but rather equal distribution among equals and
unequal distribution among equals, i.e everyone according to his own desert (treat like
cases alike).

There are also discretionary and rational justice. These are more often used by the
courts because where there is no rule or no clear rule, judicial latitude is at its widest.
Even where the rules exist, some latitudes in varying degrees still exist. However, such
discretion and rational exist within the ambits of the law.
That is why judges frequently decided hard cases by choosing an outcome which will
maximize the wealth of society. NB: That notion of justice in this regard is to direct
our attention to the fairness and reasonableness of the rules, principles and standards in
a legal system. Justice in this sense looks to the content of legal norms and institutional
arrangements. Hence, Bodenheimer stated that ‘It is the aim of the justice to satisfy the
reasonable needs and claims of individuals. Such justice can only result from just laws,
just courts, and just Judges.

The basic function of law is to ensure justice, to restrict conflicts and to create channels
of co-operation. Law aims at protecting people from arbitrariness, from oppressive and
repressive actions. Law provides security and order to help enforce standards. It is
through the pursuit above that society strives or aspires to attain justice through its
legal system. The success of any legal system or society is measured by the quality of
justice available to its citizenry.
Definition of Justice: According to Lord Denning, ‘Justice would consist in the
balancing of rights with duties and power with safeguards so that neither rights nor
powers shall be exercised or abused. Justice can also be defined within the context of
analyzing the organs for the administration of justice; the two major ones are:
legislature and judiciary. Legislations may be divided into three, viz: (a) Social
legislations; (b) Restrictive legislations and; (c) Protective legislations. All these are
used as instruments for delivering justice to the people.
On the other hand, the courts as the last hope of the ordinary man, remains the centre
of attraction when the proper meaning of justice is called to question. Hence, the
words: ‘justice delayed is justice denied’, justice should not only be done, but should
be seen to have been done’. This shows that the judge plays a dominant role in the
administration of justice. He therefore must:

 Follow accepted rules and operate within legal constraints.

 Must follow and enjoy full independence of the judiciary.
 Must follow precedents which make the law. Certainty of the law is the safety of
all.
This shows that a Judge must not be moved by personal gains, emotions or be used as
errand boy. He is to draw his inspiration from concentrated principles.
The functionality of justice is predicated in an assurance of the individual that he is in
no danger of being deprived of his legitimate rights; that he should not be oppressed by
his fellow citizens or marginalized by any group or intimidated through instruments of
power through the state. Thus, the exercise of power, justice demands there must be
some accepted restraints. NB: The overall task of legal system is to achieve justice in
the society. Justice involves equal application of the law to all persons. The idea of
justice connotes:
 There must be laid down rules in how people are to be treated in given cases.
 Such rules shall be general in character.
 These rules shall be impartially, i.e. without discrimination.
Further Definitions of Justice
Ulpian - The constant and perpetual will to render to everyone that which is
entitled to.
Cicero - The disposition of the human mind to render to everyone his due.
Thomas Aquinas - A habit whereby man renders to everyone his due, by a constant
and perpetual will.
Plato - Justice consists in a harmonious relation between the various parts
of the social organism.
Kant - The aggregate of those conditions under which the will of one
person can be conjoined with the will of another in accordance with
universal of freedom.
It can be gathered from the above definitions that the term ‘Justice’ is an abstract
concept and therefore easier to describe than to define. Whether justice is defined in
terms of just-dealing, equality, freedom, harmony, redressing for wrong doing, or even
the so called rendering to each one his due, it stands to reason that the quest for justice
is the bedrock of social intercourse. Indeed, much of the respect individuals have for
law is tied to the expectation of justice whenever there is conflict.Justice acts as a
check and not as a plus on our idiosyncrasies because we are slaves to the law that we
may be free. One therefore enquires into the nature of rendering to each his due, to live
honestly and not to hurt another.

Justice encompasses:
a. Our relationship towards others by recognizing each other as subject or rights.
b. Indebtedness to each other (to render to everybody his dues (rights).
c. General justice other than individual justice.
d. Inviolable nature of man as an embodiment of rights. Thus, any government
policy that jeopardizes the rights of her citizens is a travesty of justice.
e. Justice is an integral whole which does not admit a partition. It always considers
individual, social and distributive justice. Justice and injustice are jural
opposites.
Law and justice are viewed as virtually synonymous but it is not actually so. Yet, it is
seen that justice is a special concern of law in that law brings about justice.
Theories of justice. Social contract: This must start with social contract theory,
natural rights theories, maxist theories, and contemporary theories.
1. Individuals in society entered into a social contract on how society should be
patterned and the pursuit of this societal goal is the basis of justice.
2. Societies formed in such a way as to protect and not to infringe upon natural
rights. Any law that infringes on nature human rights is adjudged to import
injustice.
NB: Since men had the tendency to compete and infringe on the rights of others, they
preferred to join a society where the urge for competition was controlled and restrained
by a political sovereign. They thus transferred their rights (natural rights) to ‘a
sovereign’ to enable him protect them. As long as the absolute Ruler maintains order,
then his rules are just (justice moved into fight trespasser rather than against just
acquirers of land).
Maxist Theory: It is hinged on the collectivist theory in which a just ordering of
society occurs when each person contributes according to his ability and receives
according to his needs. E.g. National Health Insurance Schemes of U.S.A. and U.K.
whereby wage earners contribute to the scheme whether sick or well. Those who are ill
receive treatment as often as necessary not minding they have actually contributed. See
also PAYE Tax by people according to need. (This is also called personal theories of
justice)
i. Perfectionism Theory: organizes things to promote a particular good or value.
ii. Institutionalism Theory: Denies that any acceptable complete criteria can be
worked out and therefore results in each decision being made by the institution
of the decision maker.
iii. Libertarian Theory: Individuals are free to pursue any course of live, however
they feel. Liberal theory could advocate redistribution of wealth to enable
greater number of people to benefit. Note that such redistribution will not be
accepted to libertarian because it will encroach on the freedoms, liberty or rights
of the people from whom the wealth is taken. To liberals, there is nothing wrong
with same-sex marriages, while to libertarians, issues of lesbianism should be
preserved in the name of individual freedom.
iv. Equalitarian Theory:
a. It is advocated that everything in the society be distributed equally.
b. In making decision in the society, everybody should have an equal weight,
equal vote, and value. Infact, there should be equal concern and respect for
everyone.
Rawl’s theory on justice: He sees justice as fairness whereby parties accept those
principles that would result from an ‘original position’. In the original position, parties
set out their rules and posed appropriate questioning thus:
a. Whether parties are subject to conditions considered as reasonable and fair;
b. Whether the parties agree on the principles by which society should be
organized.
Rawls accepts Harts distinction between concepts and conceptions of justice. Rawls’
theory must satisfy the following: (a) generality (b) Universality – must be publicized
and known to the people. (c) Impose an ordering on competing claims (d) finality
Rawsl’ content of justice– the content of justice can only be appreciated when we
come to terms with the fact that justice is prior to happiness. Principles of justice are:
a. Availability of equal right and compatible equal basic liberties.
b. Social and economic inequalities are to be arranged so that both are
(i) to the greatest benefits of the least advantaged, consistent with the just savings
principles; and
(ii) attached to offices open to all in condition of fair equality of opportunity.
Rawls preaches mutual acceptance ground for rules. He imagines a hypothetical ‘veil
of ignorance’ where man could not distort principles to serve his own interest. In this
original position, one does not know his sex, status, social position, colour, class or
even views of good life, nor degree of intelligence or strength. He would not know his
generation or stage of civilization. In this position, there is no morality or compromise.
This notion agrees with the image of justice, namely, the statute of justicia (the
blindfolded bearer of sword and balance).

Rawls political liberalism postulates 4– stage sequence where the two principles of
justice are incorporated into political democracy:
 Original Position: Followed by constitutional, legislative and judicial stages.
 The constitution embodies the basic liberties which is the first principle of
justice.
 The legislative incorporate the second stage of justice which provides for
distribution of wealth and goods.
 The courts protect two stages, ensuring hierarchy norms.

NOZICK on justice as entitlement: He approaches the concept of justice by seeing

the state as a ‘middlesome interlopper’ who appropriates what belongs to the
individual and uses same or distributes it according to its whims and caprices.
Therefore, whenever the state is allowed to bring its total weight to bear and the
individual is not capable of challenging it; such a situation will breed anarchy. Thus,
for justice to flourish within the human society there should be a minimal state united
to the narrow function of protection against force, theft, fraud, enforcement of
contracts, etc.
He questions the basis of justice whereby his property will be seized or revoked, only
to be allocated to a lazy idiot simply because he belongs to a winning party who is in
power; or how can a person benefit from an establishment when he has not contributed
to the earnings thereof. He could not identity justice in this scenario. He therefore,
considers the idea of retributivism in any form as anarchism. While he recognizes
‘minimal state’ for specific purposes, he favour individualism and capitalism. He could
not understand the relevant concept of a state as that which assists in achieving
distributive justice. He rather appreciates the need for a minimal state with limited
interference into the affairs of the individual. In his ‘entitlement theory’ he posits that a
state’s involvement in the redistribution of wealth is not justified and even what is
generally referred to as taxation has been classified as forced labour. He insists that the
only acceptable mode of acquisition of property is just acquisition and just transfer. He
is opposed to argument on patterned conception of justice as that which distributes
benefits and burdens. He queries why the state can treat us as inviolable individuals
capable of being used as tools, resources, those in power elected by us choose our life
and realize our end. To him, patterned distribution is unjust.

Another possible way of acquisition will be true ratification of injustice occurring from
the aforementioned first two senses. To him, since the state does not own anything,
there can be no such meaningful concept as the goods of the society, rather goods of
individuals, thus, the state has no prima facie right to shuttle what belongs to others
according to their unfounded design of distribution and equality. He states that the
maxists theory where individuals contribute to the state according to their strength and
energy and each receives according to his need is antithesis to justice. He queries
labour and considers this approach as tantamount to forced labour, because
government constitutes itself into a part-owner of labour. This violates natural rights.
Hence, his proposition of minimal ‘right-watch man state against anarchists’. He holds
unto the notion of earning, producing, entitlement, desert, etc, as the only ways of
acquisitions. No one is entitled to hold a property unless he acquires through an
original owner (root of title)
Rowland Dworkin on justice as rights
Whether justice is conceived in terms of distributivism, utilitarianism, or
individualism, the underlying factor is a matter of interest which culminates into a
right. Hence, contenders to the nature of justice recognize the relationship between
justice and rights. Dworkin stands out among contemporary writes who define justice
in terms of rights.

Some authors explain (a) right–based theories which concern the propagation of the
interest of the individual; (b) Goal–based theory – which promotes the interest of the
society. The right–based theories are not denying the fact those individuals rights may
be shared by the society. However, the theory claims that the interest of the individual
qua individual is significant to generate the moral requirement to create a right. The
context between the two theorists notwithstanding, the existence and maintenance of
certain inherent public goods are dependent on the ideals of rights. Hence, the right to
freedom; levels of education, levels of corruption, levels of development, are tied to
the society, though it is the aggregate measure of the individuals who compose it.

According to Dworkin ‘rights are trumps: they are grounded in a principle of equal
concern and respect. So, for a Judge to make a mistake about a legal right is a matter of
injustice’. According to him, rights are not gifts from God, their institution is complex
and troublesome practice that makes the government job of securing the general
benefit more difficult and more expensive. He stated that anyone who professes to take
rights seriously must accept the ideas of human dignity and political equality. He
insisted that the right of equality ‘a prima facie right’ to that extent, government must
treat citizens with equal concern and respect. Rights are therefore safeguards inserted
into political and legal morality to prevent the corruption of the equalitarian character
of welfarist calculations, by the introduction of external preferences.

NB: While equality as a word possess its own difficulty, the equal protection of
minorities must be central to any theory of justice, because majortariansim can so
easily lead to the trampling on the rights of minorities.

NB: Dworkin locates rights in a system where adequate machinery is not in place to
eschew its erosion. Constitutional rights in turn must not only represent the voice of the
majority in the society, but must take into consideration, the interest of the minority.
Equality of justice must derive from a law that will guarantee equal concern, respect
and dignity of the human person, devoid of any shade of sentiment. In this way, justice
may become a right which when derived, makes him worthless.

Functional Justice Theory

The concept of functional justice relates to the precarious but inescapable balancing of
jural relations between persons inter se and between a person and government
including it’s agencies. By jural justice relations, functional justice contemplates the
appropriate distribution of claims and obligations. It represents what is called ‘social
justice’. Without building up public confidence and accountability, justice will
continue to wear the gab of a bettered image. The idea is to produce a reasonable and
safe equilibrium within the system. Justice is highly implicated on the constitutional
capacity of government agencies. Hence, their inability to discharge these obligations
towards society brings a big burden on acceptance concept of justice. This is evidenced
from incidences of duty. This is one of the sources of coup de tat and civil uprising by
a civil community.

When considering equilibrium or fair equality, the question should be ‘who benefits
what, and who bears what burden’. A traversity of functional justice occurs when
abuses of power are not brought before the court for consideration. This is so even in
matters of public interest like project monitoring, improving power supply, etc. It is
only Attorney General that has locus standi to sue. If he fails to sue, justice is nailed to
the coffin and the public becomes hopeless. In Badejo v Federal Ministry of
Education, the court gave rubber stamp to injustice by recognizing the constitutional
principles of federal character where different cut off marks are arbitrarily allocated
different. This is a typical unequal distribution of benefits. In this case, legal justice is
achieved but functional or social justice is abused and denied. Therefore, social
functional justice must apply to the distribution of social benefits such as claims
(right), powers, liberties and immunities.
Claims
There are two categories of claims. Those that are correlatives to positive duties and
those that are correlatives to negative duties. Positive duties draw from comments
towards such issues as valid contracts and principles of state and government policies.
These claims are maintainable against individuals or the state as the case may be. Thus,
matters on provisions of protection of basic social amenities stand as positive duties of
the state, and failure to provide same results to injustice. But the problem facing social
justice stems from the desire to achieve equal distribution of these social amenities and
if this cannot be attained, law is called upon to answer for the injustice of such
outcome. On the other hand, negative duties are those imposed to ensure that members
of the society do not suffer injury physically or in reputation from others. Also, the
inability of the state or government to provide adequate protection to citizens against
attack from the hob of claims against negative duties, because such inability are
tantamount to inequality and injustice.
Power
Two kinds of power may be deduced from legal power viz:
a. The one attached to the individual per se which enables him to enter into
contractual relations, acquire and donate property.
b. The other is conferred for the administration of society, either politically or
judicially. These two powers create capacity and authority. From the point of
view of justice and equality, the first kind of power is equally distributed to all
except infants and insane persons. The second kind of power exists beyond the
pale of equality. There is no way to guarantee justice in terms of its simple
equality, to enable everyone participate in the direct governance of a state or the
administration of justice, in the courts, or even in the distribution or re-
distribution of claims and obligations. These institutional inequalities have
paved way to abuse of powers in government. This theory is referred to as
‘Entitlement theory’ whereby economic goods already exist with rightful claims
to ownership. In this theory, the state is preferred to the individual anarchist;
however for the state to achieve all its desire, it can also be intrinsically
immoral.
Liberties
The quality of justice available in a state is determined by the liberties guaranteed to its
citizens. However, legal instruments must be put in place to ensure that citizens do not
abuse such liberties. In doing these, such liberties that many amount to obnoxious and
repugnant practices must be checked and prohibited by law. Otherwise, distributive
justice will be destroyed to the detriment of the society. Hence, Dias said ‘unrestrained
freedom of action is the road to chaos’. Justice is attained when people enjoy their
freedom without harming themselves, their neighbours, or the public at large.
Immunity
This principle is a great affront to justice as it portends discriminatory practice. It is a
direct contradiction to the rule of law and sharply offends the concept of equality and
justice. Immunity clauses create inequality of opportunities and invariably make some
person to be above the law. There must be a distinction between actions of government
per se– acts jure imperi and actions relating to commerce or private dealings – acts
jure questionis. In acts of government, if abuse of power occurs, it must be treated as
acts ultra vires, illegal and punishable. Hence, while retaining immunity as a necessary
incident of jural relations, it limits must be clearly spelt out.

DUTIES AND RIGHTS

A duty is an obligation (iuris vinculum, under the law. It represents a legal bond by
which we are constrained to act or restrained from acting in accordance with the law of
the land or the state. Duty arises only when the law directly or indirectly makes a
demand on a subject of the law. There is need to consider foundations of a legal duty
because of the difference between:
 Legal proposition-(notional ought patterns of conduct).
 Scientific proposition-(explanation through empirical research).
 Natural propositions-(behaviour of the people)
Legal, scientific and natural propositions are not always the same. This explains why
human behaviour must be regulated in any society founded on law. Goodhart opined
that ‘while description of conduct is for the physical sciences, the prescription of
conduct is for social sciences. Duties are the expression of notional ‘ought’ patterns of
conduct which people are required to conform’.
A duty can be seen as an obligatory act and treated as such for the administration of
justice. It can be positive or negative; it can be primary or secondary. Hence, if a law
recognizes an act as a duty, it enforces the performance of such a duty and punishes
those who disregard it. A duty therefore stands out as an act or fore bearance
compelled by the state in respect of a right vested in another and the breach of which is
a wrong.
‘The rapport between duty and right as captured by Salmond is: ‘There can be no duty
without a right, any more than there can be a husband without a wife, or a parent
without a child’. A duty under the law is not concerned with ‘is’ but with ‘ought’. A
 legal duty runs thus’ I no one should steal, …. Anyone who steals, upon conviction
shall be imprisoned. According to Lord Wright, ’the purpose of duty is to regulate
man’s conduct in relation to external things, not merely to ascertain and explain what
happens in fact’.

Duties under the law are conceived in terms of behaviour, i.e., by action or omission;
by compliance and non-compliance. Under the general principles of law, duties are
futuristic. It hardly deals with past behaviour for which it is certain that law is not
retrospective. Therefore, legal duties cannot be conferred on an action that has already
been completed, except for such instances of crime against humanity, e.g. the
Nuremberg trial of war criminals. This is because war crime is against morality and
perpetrators are so convinced that they offended good laws which is conceived by right
thinking members of the society as genocide. But trafficking drugs was not an offence
but later became an offence outlawed by statute in Nigeria. The pepetrator in the old
order had no duty to refrain until trafficking became an offence.

Types of duties
1. Duties which contemplate behaviour alone (performance of contract; attempting
abortion on a woman who is not pregnant).
2. Duties which contemplate behaviour in specified circumstances. E.g.
 Performing artists
 Possession of fire arms in public
 Parking in an unauthorized zone
 Drinking or answering phone while driving

3. Duties which contemplate behaviour both in relation to specified circumstances

and consequences.
 Criminal liability
 Tortuous liability
Based on this, scenario, once a duty is recognized and enforceable by the courts, it
passes for a duty under the law. Consider ‘duty of care’ in relation to act or omission
resulting to death of an infant. Whether the duty derives from an approval given by the
law, e.g. contract, or disapproval given by law, e.g. assault or trespass, it does not
matter whether one could help himself in the circumstances or not, or whether one
accepts it or not. Simply put, duty is a legal construct; which draws its power from law.

Finally, since law does not care for the individual actor alone, but provides more for
the interest of ‘the other party’ to enhance social stability, the essence of duty imposed
by law is geared towards regulation of the interest of others. Even the so called ‘self
regarding duties’ proposed by Austin, still touch on common good. These include duty
not to commit suicide or duties owed to an indeterminate person, or duty not to commit
nuisance. Note that whether a duty as a prescriptive pattern is enforced or not enforced,
does not affect the duty under the law. Hence, cases of abortion, polygamy, etc, even
when not enforced still stand as duties under the law.
Enforcement means that, if at any point in time, the particular duty is called to
question, the law must respond. This is done by:
a) Compelling observing e.g. specific performance.
b) Inflicting penalty e.g. damages, restitution.
c) Sanction, e.g. imprisonment and fines.
Hence, in establishing duties, the controlling clauses are–the standard of the reasonable
man, reasonability standard of care, the provision of the law.
Conflicting Duties
It is difficult for duties to conflict because there is hierarchy of laws establishing them.
However, when duties conflict, the last in time will prevails. E.g, Under the Sharia
Law, a woman caught fornicating will be stoned to death but the constitution of all
nations recognize right to life as a constitutional right. The constitution prevails under
the hierarchy of norm. Duties may seem to conflict but a thorough examination will
show and reveal that the demands of one duty supersede the other.
Essence of Duty
Prof. Fuller enumerated eight innate qualities which have continued to favour the
essence of duty under the law. They include:

Duties are - general-consistent in itself

- Promulgated-capable of fulfillment
- Prospective-constant through time
- Intelligible-congruent with office/action
In other words, duties are futuristic, non-retrospective, product of reason, practicable,
and avoid inconsistency.

The essence of duty manifests in its acceptability by society which enhances

condemnation of:
 Deviant behaviour by society which creates the binding force duties.
 It creates acceptability for imprisonment, damages, writs of habeas corpus,
injunction, contempt of courts, etc.
There has been developments of some basic rules of such concepts like – ubi ius ibi
remedium – audi alterem partem, - Nullum crimen sine lege, - Nullum crimen sine
poena. All these point to the possible rights available to the society in general or to a
member of the society in particular. So, if A has a duty towards B, B has the right
under the law to proceed against A whenever A fails in his duty to restore his right or
to achieve the desire of the law, B must proceed by relying on rules as provided by
law.
Theories of Duties
The above thesis have been summed up in what may be referred to as theories of duties
or reasons why laws are obeyed. The theories include:
a. Sanction Theory: It is utilitarian in approach. It is hinged on the presupposition
that people obey the law for fear of sanction.
NB: critics have raised the issue of sanctionless legal duties e.g. (a) The
immunity of judges (b) Immunity of diplomats (c) Duty to vote.
2. Imperative Theory: Duty under the law must be commanded. NB: The theory
does not explain judicial activism as a command of the sovereign.
3. Human Feeling Theory: If law exists based on societal felling of what is right
or wrong, then such feeling must conduct obedience to law and import duty to
obey the law. E.g. social contract theory implies that by obeying the law, one
obeys himself and respects his human feelings.
4. Acceptance Theory: The duty to obey the law is easy when there is a general
acceptance of the law. Therefore, in obeying the law, one obeys himself. NB: It
is trite that if there are no duties assigned by law, social human intercourse will
not be practicable. Also in the absence of duties, rights will be meaningless and
the concept of justice will equate to nothing.
Rights
It is evident that laws are respected because individuals have rights which the law
confers and protects by putting a duty on others. In order words, a right under the law
can be defined in terms of protected interests. It has been explained in different forms,
including:
 A right is a kind of claim.
 Rights are powers exercisable in law arising from duties.
 Rights are protected choices.
 Rights are legally guaranteed power to realize an interest.
 A right is a favourable position enjoyed by a person in consequences of the
functioning of the legal machinery.
 The ability to enforce the correlative duty.
NB: None of these statements is perfect. Rather, each has a snippet of an attribute of a
right. Hence, if one has a right, it serves as deterrence on another to respect this potion
as determined by law. Ultimately, the existence of a court directs the pronouncement of
courts because the issue of locus standi is predicated on existing rights under the law
and the courts seek to render to each according to his due.
Definition of Rights
There are difficulties associated with the definition of right. Some have attempts to
define it.
Hibbert – defines a right as one’s personal capacity of obliging others to do or
forebear by means not his own strength, but by the strength of a third
party. If that third party is the public generally acting through opinion, the
right is moral. If such third party is the state acting directly or indirectly,
the right is legal.
Gray – defines a legal right as that power which a man has to make a person or
persons to do or refrain from doing a certain act or certain acts, so far as
the power arises from society, imposing a legal duty upon a person or
persons.
Holland – defines a legal right as a capacity residing in one man of controlling with
the assent and the assistance of the state, the actions of others.
Justice Holmes – defines a legal right as a permission to exercise certain natural
powers and upon certain conditions to obtain protection, restitution, or
compensation by the aid of a public force. Legal right is the power of
removing or enforcing legal limitations on conduct.

NB: Constitution of nations of world provide for the protection of Human Rights,
child, women, indigenous people, etc.

Classification of Rights
Rights can be classified according to their objects as propounded by Salmond. They
include:
 Right over material things (personal properties)
 Right in respect of one’s own person (right to life)
 Right of reputation (against libel and slander)
 Rights in respect of domestic relations (marriage, children etc)
 Rights in respect of other rights (engagements)
 Rights over immaterial or intangible property (patents, copyrights, trade
marking)
 Rights to service (master/servant, physician/patient, employer/employee).

Legal Rights
Have been classified thus:
1. Perfect and Imperfect Rights: E.g a perfect right corresponds with perfect duty
and is enforceable. An imperfect right may be good as a ground of defence,
though not good as a ground of acting. E.g. right to life; defence of provocation
With an imperfect right, a claim may not be enforced on account of the absence
of some special form of legal proof.
2. Antecedent and Remedial Rights: These are also classified as primary and
secondary rights; or substantive and adjectival right. Antecedent rights are
independent of the occurrence of a wrong. E.g. constitutionally guaranteed right
to life or other fundamental rights. Remedial rights are provided by the state
through the judiciary for the redress of injuries done on an antecedent right.
3. Rights in rem and Rights in personam: A right in rem is available against the
whole world, while a right in personam is available against a particular
individual. A right in rem is explained with the reputation of a person (against
the whole world), while a right in personam is explained with a contract.
4. Proprietary Rights and Personal Rights:
Examples of proprietary rights include: assets and property, right to debt, patent
and trademarks(economic and monetary value). The duty of fulfilling a contract
to marry is a good example of personal rights.

5. Vesied and Conitngent Rights

According to Paton, ‘when all the investitive facts which are necessary to create
the rights have occurred, the right is vested; when part of the investitive facts
have occurred, the right is contingent until the happening of all the facts on
which the title depends. A vested right is completely in the owner; while a
contingent right is dependent on another event. E.g. when one wins a
governorship election and is issued with a certificate of return by INEC, the
person so elected acquires a contingent right, pending the swearing ceremony. If
he dies before the swearing-in-ceremony/date, the right fails. However, upon
swearing in, the person acquires a vested right and becomes the Governor.
6. Legal and Equitable Rights: The owner of a legal/right must have acquired it
for value and without notice of a prior equity. When there is a conflict between a
legal right and an equitable right, the legal right prevails.
6. Rights in Re-proporia and Right in Re-Aliena: In re-aliena, there is an
encumbrance, while in re-propria, there is full right. Rights in re-aliena creates
rights over the property of another person, e.g. pledge, securities, leases. The
landlord has a right in re-propria over his property. If he uses the property as a
security or collateral for loan from a Bank, the Bank has right in re-aliena over
the said house.

Characteristics of a Legal Right: It possess the under listed five characteristics viz:
1. A right must be vested in a person who authoritatively stands out as the owner of
the legal rights, the subject of the right, the person of inherence or the person of
entitlement.
2. A right is a legal shield which avails against a person upon whom the correlative
duty lies. This person is seen as a person bound or a person of incidence.
3. A right must manifest its content by obliging the person bound to an act or
omission in favour of the person entitled.
4. Every legal right must demand for an act or omission in relation to something
(res). This is the object in subject of the right.
5. Every legal right must be vested on the person of the inherent based on certain
facts or reasons. This is termed ‘the title of the right’.
In the general discussion or rights, four elements can be outlined in every legal right
viz:
a. The holder of the right
b. The act or forbearance to which the right relates.
c. The res (or thing) concerned, which is the subject of the right.
d. The person bound by the duty.
Jural Relations: In the general analysis of rights, every right involves a situation
between parties. The law therefore confers a right on one and a duty on the other.
Authors like Hohfeld and Glanville Williams have explained the concept of rights in
terms of jural relations. This is made up of:
 Jural opposites – jural correlatives
 Jural contradictories.
For jural opposites, the copulations are: Rights/no rights, privilege/duty;
power/disability, immunity/liability. For jural correlatives, we have rights/duties,
privilege/no privilege (or no-claim), power/liability, immunity/disability.
 For jural contradictories: we have: Rights/privilege, duty/no-right,
power/immunity, Liability/disability. Therefore:
1. By a right (claim) is meant that everyone is under a duty to allow X to do R, and
that X would have a claim against anyone from everyone to enforce that right.
2. By a privilege (liberty) is meant that X is free to do or refrain from doing that
which is the subject of R. Y (a third party) has no claim against X, if X either
exercises or refrains from exercising that liberty.
3. By a power is meant that X is free to do an act whether or not he has a claim or a
privilege and that this act would have the effect of altering the legal rights and
duties of others.
4. By an immunity is means that X is not subject to anyone’s power to change his
legal position.
5. By a duty is meant that Y must respect X’s right.
6. By no-claim is meant that where X has a liberty, Y has no claim that X should
not exercise that duty.
7. By disability is meant that the party has an inability to change another person’s
legal position.
The foregoing has been represented in a diagrammatic form below:

Right (claim) privilege (liberty

Duty No Right (No claim

Power (ability) immunity

Liability Disability

Summary

Vertical – correction ‘ in ‘A’ implies the presence of – in ‘B’

Horizontal – contradiction ‘ in ‘A’ implies the absence of – in ‘B’
Diagonal – Opposition “ in ‘A’ implies the absence of – in ‘B’.
Hohfeld’s aim is to clarify different kinds of legal relations and the different ways to
which certain words that are employed in legal reasoning are made. By so doing, he
attempted to provide a model for the correct solution of legal problems. Hence, he
warned that the term ‘right’ must be used in a very strict sense and not indiscriminately
to cover other terms like; privilege, power, and immunity.
Reacting to Hohfedian theory, Dias observes that it would be necessary to view the
relationship between the jural relation at rest and changing jural relationships in a
contemporary perspective. He noted that a change in the power/liability relation will
have a ‘knock on’ effect on the claim/duty relation. The power/liability relation would
be created or amended in power/liability relationship. Since change in power in a
dynamic society is constant, changes in power will entail changes in claims.
Elucidation of Hohfeld’s Theory
Its analysis consists of four sets of correlative legal relationship that cover or at least
purports to cover, the most fundamental legal concepts, that can be encompassed
within the ‘idea of a legal right’:
1. The right (strict sensu)–duty relationship (arguably the most fundamental
relationship).
2. The liberty (not) no – right relationship.
3. The power liability relationship.
4. The immunity disability relationship.
Relationship 1 and 2 are opposites or negatives of one another, as are 3 and 4. The
relationships are ‘correlative’ in the sense that where one party to the relationship
(whom we might call the ‘party of inherence’) occupies one side the relationship,
another party (who we might call ‘the party of incidence’) automatically occupies the
other side of the relationship. Thus, a right holder, as party of inherence may have a
right that a duty–bearer, as party of incidence, should perform some act.

Illustration
Obi buys Mercedes Car and insures same with NICON under a contract of indemnity.
NICON provides for an insurance excess of N100,000 which Obi must pay as the first
claim of any claim. Tree fell on the car and damaged it beyond repairs a day after he
bought the car. Obi makes a claim of N1.3m from NICON being the market value of
the car, less the policy excess of N100,000.
Scenario 1
The right (strict sensu)–duty relationship so far as NICON is concerned (and its
position is legally accurate).
 Obi has a right strict sensu (relative to NICON) that NICON shall pay N1.3m
 NICON has a duty (relative to Obi) to pay Obi (N1.3m so far so good).

Scenario 2
The liberty (not) no-right relationship. Obi says ‘I bought the car for N1.4m, therefore,
you must pay me N1.4m. Secretary of NICON directed him to the indemnity
agreement which says NICON will pay N1.3m, while Obi pays N100,000. So far as
NICON is concerned:
a. Obi has no legal right (relative to NICON) that NICON shall pay him N100,000.
b. NICON is at liberty and indeed has a ‘legal liberty’ relative to Obi to pay Obi
N100,000. Put differently, NICON has no duty to pay Obi N1.300,000.
Obi realizes for the first time that the N100,000 insurance excess is the opposite or
negation of his wider right to claim the market value of the new car from NICON. This
shows that under the theory, NICON has no legal duty or liability to pay Obi the
N100,000. NICON is at legal liberty not to pay Obi.

Example 2
The power liability relationship on its jural opposite. E.g. A newly employed Police
Constable sees a miscreant smashing a car window and stealing a phone from the car.
He arrested the thief.
 The constable has a legal power (relative to that miscreant) to arrest him.
 The miscreant is under a legal liability (relative to the constable) to be arrested
by him.
Scenario 2
The immunity disability relationship: the miscreant smiles and told the constable
at the point of arrest that ‘I am a Japanese diplomat. You can’t arrest me because I
enjoy immunity (relative to you) from arrest by you and you are under a legal disability
(relative to me) to place me under arrest. The officer checks his postport and sets
him/free.
Multital and ‘Paucital’ Jural Relations
The law of property provides an obvious difficulty and source of challenge to an
analysis that seeks to describe law in terms of jural relations between persons. Property
or rights in rem, seems to lawyers and laypersons alike as a relationship between a
property owner and some form of property, or at a more abstracts level, between a
person and a thing. A distinctive feature of Hohfeld’s analysis is the famous coining of
the terms ‘multital’ and ‘paucital’ arising in the context of Hohfeld’s discussion of
rights in personam contrasted with rights in rem. He argues that the distinctive feature
of the right in rem is that unlike the right in personam, it is not an isolated right
availing against one determinate individual but a bundle of essentially similar rights
availing respectively against each of a large and indefinite class of individuals.
The relative fewness of or paucity of those individuals bound by the right in presonam
led Hohfeld to describe such rights as ‘paucital’. By contrast, the multiplicity of
individuals bound by a right in rem inspired him to attach the tag ‘multital’ to those
rights.
NB: A paucital right or claim (right in personam) is either a unique right residing in a
person (or group of persons) or else, it is one of a few fundamentally similar, yet
separate rights available against a few definite persons. A multital right or claim (right
in rem) is always one of a large class of fundamentally similar, yet separate rights,
actual/or potential, residing in a single person (or single group of persons) but availing
respectively against persons constituting a very large and indefinite class of people.

More recently, it has been suggested that the distinguishing characteristics of a right in
rem is that no rule of law limits the number of persons who may be subject to the
corresponding duty. On the other hand, the continental jurists say that absolute rights
are those which avail against a single person or a limited number of persons.

THEORIES OF RIGHTS
Hart’s will theory: Hart views rights as legally protected choices. He emphasizes the
power or option of one person to waive someone else’s duty. Thus, having a right is to
do with the legal or moral recognition of some individual’s choice as being pre-
eminent over the will of others as to a given subject matter in a given relationship. This
is applicable in the civil law area in matters such as contract. The essence of holding of
a right is that the holder has the right has the choice whether to waive the duty owed to
him. The connection with Hohfeld’s scheme of jural relations is apparent in that such a
view assumes a correlativity of right and duties. In this theory, the choice could be
expressed in Hohfeldian terms as the choice of whether or not to exercise that right or
power or privilege or immunity. A problem with this approach is that it makes the
enforcement of a duty conditional on the exercise of a choice or will of a person other
than the person who is under a duty – ‘Y’ will only be under a duty if ‘X’ who has a
right in respect of that duty decides to exercise that right. A difficulty that Hart readily
admits with this approach is that it fails to take account of the fundamental rights of the
individuals against the legislature. For this right, Hart invokes the ‘immunity’ as
defined by Hohfeld.
MacCormick’s Interest Theory
He criticizes Hart’s theory on the grounds that there are some rights which do not seem
to involve the exercise of a choice at all. He argues that in the area of paternalistic
criminal law (that is the authority exercised in a way that limits individual
responsibility) the law limits the power of waiver without destroying a substantive
right. E.g. in assault and murder cases, the law will not admit the consent of the victim
in defence to a prosecution. MacCormic then argues that if one cannot consent to
assault, it follows that one is not exercising a choice on the right of freedom of the
person. He is of the view that the nature of rights can be viewed as protecting the
interest of the right holder. He draws a distinction between the substantive right and the
right to enforce it. E.g. children possess the substantive right to have their interest
protected, but lacks the right to enforce that right. The right to enforce that right rests
with their guidance. Again, children cannot in law, moral, and infact relieve their
parents of their duties towards them. MacCormic then prefers the view of rights as
protecting certain interest in the sense that either moral or legal normative constrains
are imposed on the acts or activities of other people with respect to the objects of one’s
interest.

Harts admits that if rights are all about choice, then a young child would not possess
any right in that sense. As to the question of the protection of the child, he maintains
that rights are not the only moral basis for protection and that other facts such as
humanity, love and compassion also provide the basis for protection. If that is so, then
there would be no need for a formal assignment of rights to the child on its attaining
the age of choice – perhaps the traditional key of the door or other ceremonies of
attaining adulthood also imply an assignment of rights. A problem with the idea that
rights are founded on love, etc, is that it is impossible to enforce love. Harts rejects the
view that rights are legally protected interest because he maintains that the interest
analysis does not explain rights independently of duties. If a right is a protected
interest, then rights can always be expressed as a reflex of duties.

MacCormick gives an example of the right of succession in interest (which cannot be

rephrased in terms of the rights of the perusal representatives because the right vests at
death – prior to these duties. He maintains that the idea of correlativity obscures the
fact that duties are imposed in order to protect rights. There may however, be a
problem in identifying the beneficiaries of a duty.

Simmonds gave a scenario that crash helmets are imposed by law on all motorcyclists.
But who is the beneficiary of this duty, is it the beneficiary. (surely not the
manufactures of crash helmets).
However, MacCormick is not entirely correct in his contention that power to waive a
right is not a necessary part of a right but is just something that a right includes. In
furtherance of this contention, he demonstrated that in certain circumstances, it is
necessary to override freedoms – E.g. under the law of contract, the freedom and terms
to contract is overridden by the recent consumer protection legislation. Simmonds
stated that even if MacCormick has provided a convincing case against the
correlativity of rights and duties, it is by no means clear that he has provided a
convincing alternative. He further stated that ‘it cannot be denied that the central point
of the theory is that apart from children and incapacitated persons, the holder of a legal
rights is empowered in law to choose whether he should avail himself of his right on a
specific occasion by insisting on performance of a correlative duty’.

NB: Hart’s and MacCormick theories are compatible but Hohfeld stated that such idea
will lead to falling into linguistic trap. For MacCormick, the difficulty is the ‘absence’
of choice with regard to children’s’ right, the argument being that those rights are
among those referred to by Hart in his notion of immunity rights which are dependent
upon public benefit. In the Hohfeldian sense, the rights of children as envisaged by
MacCormick are claim rights whereas Hart’s are immunity rights. Hence, while both
rights are fundamental and important, they have different lowest common
denominators.

NB: Attention should be paid to the question of judicial discretion. The issue is
whether there is always a legal right to cover every legal question to be adjudicated?
The answer has been that there is not always a right answer and the judge is left with
an area of discretion within which to decide the case before him. For instance, the
legislature has the right to alter jural relations through the dynamics of law making (ie.
through enactment of new laws, amendment of existing laws; or abrogation of a law
that is in force). This authority may be abuse when used to achieve inordinate ends to
the detriment of functional or social justice. There is a divided opinion on the powers
of the court to control the excesses of the legislature for while the naturalist support the
power of the courts to declare an act of parliament illegal or invalid for failure to
conform to certain criteria of validity, the positivist think otherwise. Lord Brightman
stated that ‘judicial review is concerned, not with the decision but with the decision
making process’. Otherwise the courts will not be preventing abuse of powers, but will
themselves be guilty of usurpation of power. Lesson from judicial precedents in
Nigeria tend to support the sentence of the naturalists’. In Federal Government Civil
Service Commission v. Laoye, (1989) 2 NWLR, (Pt. 106 P. 652, the Supreme Court
held that ‘All Litigants approach the seat of justice openly and without any inhibition
or handicap… In the unequal combat between those who possess power and those on
whom powers bear, the court’s primary duty is protection (of the latter) from the abuse
of power’
Thus, the Supreme Court held in Ali Bendel State v. A.G. Federal (1983) 1 All NLR P.
208, that the ‘purported passage of an Act intended to lay down a Revenue Allocation
Formular for the country was invalid’.
Evaluation of Hohfeld’s Scheme
Hohfeld adopted an unusual terminology to which it would be naïve to expect the legal
profession to adopt overnight. His analysis has illustrated the interrelationship between
words. He mistakenly considers all rights as a set of any number of his four elementary
rights viz: claim, privilege, power and immunity. This is because contemporary event
shows that possession of rights entails much more that these four elementary rights.
E.g. the concept of ownership can be seen as a bundle of rights. It creates a set of rights
and claims and does not stop with the relationship between the owner and the tangible
object. However, Harris attests that Hohfeld’s analysis is in order as it enables real
normative choice to be disentangled from verbal confusion. According to him,
Lawyers and Judges always return to these analysis for clarity, and that through
Hohfeld’s analysis, compound legal concepts which created juristic problems have
been resolved.

NB: Hohfeld’s set of correlativity can hardly be applied to criminal law except to the
extent that every litigation involves two opposing parties for which rights can be
correlative, opposite and contradictory. He was concerned with the lowest common
denominator in litigation which would not apply to criminal prosecution (because the
duty here is not owed to the prosecution but to the society as a whole. Also any
explanation of the concept of right in rem is impossible to the world of Hohfeld.

According to Roscoe Pound, Hohfeld’s conceptions are without juridical significance.

Some authors say his scheme lacks any utility and therefore superfluous. According to
Roscoe Pound, Hohfeld’s conceptions are without juridical significance. Some authors
say his scheme lacks any utility and therefore superfluous. Inspite of these arguments
however, further developments and elucidations on the study of rights have drawn
inspiration and direction from Hohfeld. Inspite of these arguments however, further
development and elucidations on the study of rights have drawn inspiration and
direction from Hohfeld.
Legal Personality
Philosophically, it refers to rational substratum of human being. Legally, it refers to the
capacity of a result and duty bearing unit. A legal person therefore is any subject
matter whether human or not, to which the law attributed rights and duties. In every
legal system, certain entities are regarded as possessing right and duties which the law
enforces. They are able to do so because the law recognizes them as legal persons. By
this coloration, they possess the capacity to have and maintain certain rights, and are
bound to perform specific duties. Therefore, it is the character and the scope of the law
that determines which persons or entities that will be entitled to what rights and duties.
The law also determines the scope and nature of legal personality. The thing
personified may be termed ‘corpus’ of the legal person so created. It is the body into
which the law fuses ‘animus’ of fictitious personality. Hence, a legal person has a real
existence but its personality is fictitious. Personification is essential for all legal
personality but personification does not create personality. Until the law says so, a
person is not necessarily a human person. There are persons who are not human
beings. According to Paton, ‘legal personality is an artificial creation of the law’: a
particular device by which law creates units into which it ascribes certain powers;. In
the historic sense, human person or being is therefore not ipso facto legal person,
unless and until such recognition is accorded by law. This was why slaves and women
were regarded in the olden days as chattels. Similarly, aliens lacked the capacity to sue
in courts because they were not treated as persons before the law.
NB: that legal personality may be granted to entities other than individual human
beings, eg, a group of human beings, a fund, an idol or foundation. It rests with the law
to confer, withdraw, or deny legal personality to any person or entity. In other words,
legal persons are real and imaginary beings to whom personality is attributed by law,
by way of fiction where it does not exist in fact.
To avert the confusion in the use of language, Roscoe Pound suggests the use of
expressions like ‘legal units’ and ‘legal entities’ in place of the omnibus phrase ‘legal
person’. Kelson suggests the use of jueistic and physical person. Physical person is the
personification of the sum total of legal rules applicable to the person, while juristic
person is the personification of the legal rules applicable to a plurality of persons.
Types of Legal persons: Two broad types include
(a) Natural persons
(b) Juristic or artificial persons
Natural Person: these include physical adult persons, infants, unborn persons, and
women. In the olden days, monks and persons jailed for life were regarded as
civilly dead. This has changed long ago and people now enjoy certain rights and
duties under the law. In the old Roman and English law concepts, unless a child is
born and separated from the mother, it has no legal personality, and thus not
 regarded as a legal person. According to S. 307 CC, a child becomes a person
capable of being killed when it has completely proceeded from the body of the
mother in a living form. However, in Walker v Great Northern Railway, (1891)
L.R. Ir P. 69, a female infant sued Defendant company for injuries inflicted on her
while in her mother’s womb due to collision caused by the Defendant’s negligence.
Thus, the law conceded that the born child has a right. Also, abortion or destruction
of a child is a criminal offence under Section 328 CC. Again, a child when born
can proceed against the mother for malformation accruing to the child while in the
womb, due to mother’s recklessness, drug abuse, smoking, drunkenness. Section
309 CC also provides that if a child is born alive and then dies subsequently as a
result of an act or omission done before or during its birth, the person who does or
makes the omission is deemed to have killed that child. See State v Akpan (1972) 2
UILR P.457.

Infants are infested with rights and obligations or duties under the law. They however
suffer from disabilities due to age and limitations. They cannot vote or be voted for;
and cannot enter into contract until they attain majority. Hence, all contracts entered
into on behalf of the child are invalid until they ratify same upon attaining majority.
Again, under the CC, there is an irrebutable presumption that a person under the age of
17 years cannot be guilty of an offence, while a person under 12 years is regarded as
Doli Incapas unless rebutted by clear evidence to that effect. Similarly, a male child
under the age of 12 years is presumed to be incapable of having carnal knowledge; a
male under 18 years cannot contract a valid marriage unless with the consent of his
parents. Other than these limitations placed by law, an infant is a legal person.
Married Women: At common law, the personalities of a husband and wife are fused
into one because of 1+1 =1 fiction. According to Blackstone, husband and wife is one
person in law. This means that the very being or legal existence of the woman is
suspended, or subsumed, or she exists under the husband wings, influence, protection
and cover. All legal rights and duties stem from this union and therefore attributable to
the husband. If a tort was committed either by or against the married woman, both
herself and the husband were joined as co-defendants or co-plaintiffs to the action.
Hence, it is not strange that upon marriage, a woman acquires the husband’s domicile.
Under the criminal law, a husband and wife cannot be guilty of conspiring with each
other. At common law, a married woman possesses no contractual capacity and the
marriage vested the benefits of all contracts already made by her before the marriage
on her husband. It was equity that recognized the right of women to own separate
properties in their own homes. This was further provided for by Married Women
Property Act, 1882 and 1893. Nowadays, a woman enjoys all contractual rights as if
she was a ‘feme sole’. The constitution has also eliminated the disenfranchisement of
woman in the Muslim states. After the Beijing Conference, all discriminatory acts
against the status of women have been dismantled. Women now enjoy equal rights and
equal personality with men in accordance with the constitutional provisions on
freedom from discrimination (Section 42 CFRN).
Juristic Persons: These are those entities, objects, groups, things and group of
individuals on which the law confers rights, obligations and duties. They are entities
other than human beings to which the law attributes personality. In this way, the law
personifies some real things and attribute a quality of personality to a purely imaginary
being. According to Salmond, legal person, being arbitrary creation of the law may be
of many kinds,
1) Corporations: Which are constituted by the personification of groups or series
of individuals. Corporations may be (a) Corporation aggregate (b) Corporation.
2) An Institutions: In this way, the law may confer legal status on a church,
hospital, university, library, etc. By law, the attributes of a legal personality goes
to the institution itself and not on group or individuals who comprise it.
3) The 3rd category includes certain unincorporated associations which have been
granted the status of legal person by law, e.g. registered Trade Unions and
Friendly Societies.
In Fawehinmi v NBA & Ors. (No. 2) (1989) 4 S.C.N.J. P.578, Supreme Court
established a ground rule on the principal and jural units to which the law ascribes
legal personality to include: Human beings, companies with perpetual succession, trade
unions, partnership and friendly societies.
Corporation: This is recognized by law as a person distinct from members or
shareholders; a metaphysical entity or fiction of law with legal but no physical
existence. It is the group of series of person which by legal fiction is regarded and
treated as a person. It is a mere abstraction of the law. Blackstone stated that a
corporation is incapable of commiting treason in its corporate capacity neither is it
capable of suffering a traitors’ imprisonment or punishment. Two kinds of corporations
are: corporate sole, and corporate aggregate.
Corporate Sole: It is an incorporated series of successive persons; i.e, it consists of an
individual holding on office which has perpetual succession. E.g crown, a bishop, a
stool, an idol, a person, etc. Although a corporation sole may bear the same name as
the natural person who represents it, the properties which it owns as a corporation sole
are quite different from his private properties, and on his death, such properties will
pass to his successor-in-office, and not to his personal representatives. This devise
 enables gifts to be validly made to the corporate sole which would otherwise fail for
remoteness. E.g a gift to the Bishop of a Church and his successors is a valid gift made
to the corporation sole. But it will fail for infringing the rule against perpetuity if it is a
gift to the Bishop in his private capacity. E.g, the stool, as a traditional corporate body
is an example of corporation sole. Customary law recognizes a number of traditional
rules e.g, Igwe, Eze, Oba, whose offices are treated separately for legal purposes from
the human beings occupying them at any given time.
Corporation Aggregate: It is an incorporated group of co-existing persons. It is from,
and is a separate legal entity from the members who compose it. It is capable of
enjoying rights as stipulated by law or bearing duties which are not born by its
members. Because it has legal personality, it is addressed or described as an ‘Artificial
Person’ in contrast with a human being or natural person. A company as a legal person
has acquired attributes and capacities which include:
1. Capacity to have domicile, residence nationally and alien character. Accompany has
been held to have capacity to occupy a premises. See Pan Asian African Co. Ltd v
National Insurance Corp. Nig. Ltd (NICON) (1982) All NLR (Pt. 1) P. 25.
2. Capacity to commit crime: Originally, a company could not commit crime
because it has no mind capable of being guilty (mens rea). Recently, jurisprudence has
shown that a company many be held criminally liable for the acts of its agents, and
malicious intentions may be imputed to the company on whose behalf the agent has
acted. A company can be subjected by legislation for violation of statutory
responsibility, failure to perform acts required by statutes, and for doing prohibited
acts. Hence, section 65 CAMA provides that a company may be criminally liable for
acts of its members.
3. Capacity to commit tort: A company generally liable in tort for acts of its
agents or primary organs, or its officers. It is vicariously liable for acts of its agents and
officers. In Ayodele James v Midmotors (Nig.) (1978) 11 & 12 S.C., it was held that a
corporation aggregate is liable in tort, provided it is a tort in respect of which an action
will be brought against a private individual, provided the person by whom the tort is
actually committed is acting within the scope of his authority and in the course of his
employment as agent of the corporation.
4. Capacity to contract and execute a document

By Section 71 CAMA, the contracted capacity of a company as well as the form of its
contractual capacity must be provided by the articles of the company. The company
has capacity to sue and be sued; the capacity to form another company and partnership.
It has perpetual succession.
Theories of legal personality
The theories to be discussed are concerned with the philosophical examination of
personalities other than human beings. They are:
i. Fiction (fictitious) Theory: The protagonist of this theory is Savigny. The
theory challenges that ‘fiction’ of ascribing legal personality to entities other than
natural persons and therefore assumed that legal personality of entities other than
human beings is a fiction. The deduction that flows from this theory is that, not being a
‘real person’, corporation cannot have any personality of its own; it has no will, no
mind, and no ability to act. It can have only so made as the law imputes to it by fiction.
Maitland said ‘we must carefully separate this ideal person from those natural persons
who are called its member. Wolff said that ‘whatever may be the nature of corporations
(and the like) all that interest us is that they are endowed’ by law with legal capacity as
if they were human beings.

The basic perception of fiction theory is that not being a ‘real person’, a corporation
cannot have any personality of its own. Yet, the law is clear that legal persons
comprise all entities with the capacity of a ‘right and duty’ bearing units. i.e, it relates
to all entities recognized by law as capable of being parties to a legal relationship.
Savigny opined that; ‘all law exists for the sake of liberty inherent in each individual’.
Therefore, the original concept of personality must coincide with the idea of man’.
Anything short of this must be a farce and whenever legal personality is granted to
corporations or artificial objects, it is done for the convenience and benefit of the
human. When the group of persons come together to wear a garb under the concept of
legal personality, such a fictitious entity will have no real mind, no will and indeed,
cannot be a real person.

Hart opined that ‘fiction theory conceals the fact that the word ‘will’ shifts its meaning
when we use it for company: the sense in which a company has a will is not that it
wants to do legal or illegal actions, but that certain expressions used to describe the
voluntary actions of individuals may be used of it under conditions prescribed by legal
rules.

The only inference from fictional nature of a company is that it has a fictional will and
therefore cannot make itself liable for certain legal wrongs especially legal wrongs
requiring mental element. However, this view has long been defeated by the provisions
of (CAMA, Section 65) which provides that ‘Any act of the members of a general
meeting, the Board of Directors, or a Managing Director, while carrying on in the usual
way, the business of the company, shall be treated as the act of the company itself and
the company shall be criminally and civilly liable thereof, to the same extent as if it
were a natural person’.

In Bolton (Engineering) Co. Ltd. v Graham & Sons (1956) 3 ALL ER P.1078, the
Court held that ‘a Company may be liable in crime to the same extent as a natural
person. Thus, a Company could be prosecuted for a common law offence of conspiracy
to fraud, even though mens rea is an essential element of the offence. It is therefore
trite that the fundamental attribute of legal personality is that a company is a legal
entity distinct from its members. It enjoys right, and is subject to duties. It is a legal
person who can sue and be sued.

Symbolist or Bracket Theory: This theory is associated with Thering who asserts that
members of a corporation and the beneficiaries of a foundation are the only ‘persons’.
He opined that ‘juristic person is but a symbol to help in effectuating the purpose of the
group; it amounts to putting a bracket round the members in order to treat them as a
unit’. The theory assert that only human beings can have legal interest or rights, and
that a corporation is only a legal device which enables very complex jural relations to
be comprehended simply. The Bracket theory or symbolist theory presents a simple
analogy: if four (4) people form a company, it cannot answer the name of one of them.
Therefore, a new entity representing the interest of four (4) of them must be invented.
This invention merely places the real names or identity of the four (4) persons in a
bracket, or put in another way, the new name is a symbol of the identity of the easier to
refer always to them all as a single entity under the law.

NB: The Company is incapable of enjoying any rights except that whatever rights are
attributed to it is enjoyed by its members. Critics of this theory say that it is socially
and economically false, and legally fictitious to conclude that only individuals can be
bearers of legal rights. This theory has severally been rejected on the Courts. In
Anyaegbulam vs. Osaka (1989) 4 SCNJ P. 40, the Court held that:
‘An Association that has been incorporated has a legal person and can sue
and be sued in its corporate name. The Court also ascribes legal personality
to incorporated Associations’. See Trenco (Nig.) Ltd. vs. African Real Estate
Ltd. and Marina Nominees Ltd. v. Federal Board of Inland Revenue, (1986)
2 NWLR (Pt. 20) P.48, where it was held that ‘an Incorporated Company is a
creature of the law, clothed with Independent Legal Personality from the
moment of incorporation, distinct and separate from those who labored to
give birth to it’.

NB: Since the law creates the bracket or accepts the ‘new’ symbol, it becomes easier
for the Court to remove such bracket (usually referred to as ‘the veil of Incorporation’)
for purposes of achieving specific needs of the law; particularly to prevent fraud, or for
public policy.

The Concession Theory: This theory supports and is aligned the fiction theory. It
regards the dignity of being a juristic person as having to be conceded by law and the
state. Thus, the instrument of state is necessary for concession theory. However, this
theory in this sense, disagrees with fiction theory which disregard the power of the
state for the attainment of the fictitious status. Concession theory seems to be a truism
because in modern world, legal personality can hardly be secured otherwise by the
compliance with the conditions laid down by law. Thus, the law is only the source
from which legal personality may flow. It is therefore not strange to note that this
theory has been used for political purposes to strengthen the state and to suppress
autonomous bodies within it. E.g, Section 7 of CAMA on functions of the commission
(referring to an act of the state and law) provides that the commission shall administer,
regulate and supervise the formation, incorporation, registration, management and
winding up of Companies. The same law provides that two or more persons may form
a Company; and not more than twenty persons shall form a Company. Ibid.

Realist and Organism Theory: The exponent of this theory is Van Gierke, but other
scholars like Maithland and Dicey are Sympathizers. For the realists, a corporation is a
real person and has real personality. Dicey opined that: ‘when a body of men bind
themselves together to act in a particular way for some common purpose, they create
body which by no fiction of law but from very nature of things, differs from the
individual of whom it is constituted’.

Realists conclude that a juristic person enjoys real existence as a group; separate as a
unit and function as such. Realists’ analysis of this human personality and group
personality as possessing the same characteristics gave impetus to the realistic
conclusion that, so far as groups of persons are real and have real power of action, the
two–natural persons and juristic persons–are automatically persons. The organism
theorists share in approach highlighted by the realists. Though sounding a little bit
scientific, they agree that groups are persons because they are an ‘organism’ and
correspond biologically to human beings. To that extent, groups have real life; enjoy
group ‘will’ which is independent of the wills of its component members.The organism
theorists like realists, state that the group entities are real in a different sense from
human beings. According to them, ‘the reality’ is physical, namely, the unit of spirit,
purpose, interests, and organizations.

Criticism of the theories

The above discussed theories contain elements of credence, value and relevance in
their ascertains. These theories have shown attributes of philosophical, political and
analytical expositions, they did not seek to solve any problems; but to explain the use
of the word ‘person’ or ‘legal person’. What is exciting that the law whose duty is inter
alia, to provide answers to practical problems, has proceeded empirically and
functionally to provide adequate and consistent answers to problems relating or
appertaining to legal personality. In pursuance thereof, it has harmonized, streamlined
and regularized the use, application and consequences of legal personality. Persons
now include individuals and also those other entities to which the law ascribes rights
and duties. To Kelsen, there is no distinction between natural and artificial persons. He
asserts that legal personality is always a matter of law; it is simply a capacity for rights
and duties, and this capacity is the same whether conferred on human or artificial
persons.