CAPACITY TO CONTRACT – Whether a dead person has capacity to enter into a contract

Whether a dead person has capacity to enter into a contract

CAPACITY TO CONTRACT: This article briefly examines the capacity of a dead person to enter into a contract. We shall look at various judicial authorities on this subject. Finally, we shall arrive at the position of law in respect to the contracting capacity of dead person to create legal relation.

The Position of Courts on the Capacity of a Dead Person to Enter into a Contract.

In the case of POPOOLA & ORS v. TAIWO(2020) LPELR-50044(CA), the Court of Appeal examined the capacity to enter into a contract. Below was the findings of the Court

CONTRACT – CAPACITY TO CONTRACT – Whether a dead person has capacity to enter into a contract
“It is a settled fundamental principle of law that a dead person has no legal capacity having ceased to exist in the eyes of the law. Such dead person totally has no capacity to enter into any contract with a living person. A Contract cannot be entered by or on behalf of deceased person.” Per BALKISU BELLO ALIYU, JCA (Pp 24 – 24 Paras C – F)

The position of the law is settled that a dead man lacks the capacity to sue and be sued. This is because in the eyes of the Law, a dead person ceases to exist and any cause or action pending against such a person automatically abates. SEE APC V INEC & ORS (2014) LPELR-24036(SC) and SGB Ltd. V. Braimoh (1991) 1 NWLR (pt. 108) 428 at p. 434 – D-G.

Also, in the case of NZOM V. JINADU (1987) 1 NWLR (PT. 51) 533 AT P. 539, the Supreme Court held inter alia: “the dissolution of legal person is analogous to the death of an ordinary human person…dead men are no longer legal persons in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be sue of.”

SEE ALSO: VALIDITY OF CONTRACT – Essential Elements of a Valid Contract


In BABA v. INTERCONTINENTAL BANK PLC (2017) LPELR-44581(CA) the Court held that an action cannot be maintained by or against a dead person, because he lacks capacity to litigation. Per UCHECHUKWU ONYEMENAM, JCA (Pp 9 – 10 Paras F – A)

Thus, where a dead persons lacks capacity to litigate, such a dead persons also lacks the capacity to create legal relation. Recall that the intention to create a legal relation is one of the essential ingredient of a valid contract. This means means that contracting parties must have the intention to create a binding contract and be able to enforce their rights in Court.

Thus, it is the position of the Law that dead man lack legal existence and cannot create legal relation whatsoever. Hence can not enter into a valid contract. The absence of of Legal Relation means the absence of a valid contract.

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