Mercado de oferta

The principle of the Salomon case,115 which establishes that a company is a legal entity distinct from its members, is strictly applied by the courts whenever it is sought to attribute the rights or liabilities of a company as belonging in law to its shareholders, or regard the property of a company as belonging in law or equity to the shareholders.116 Thus, the fact that one shareholder controls all of or virtually all of the shares in a company is not sufficient reason for ignoring the legal personality of a company.117 Furthermore, a company cannot be characterised as an agent of its shareholder unless there is clear evidence to show that the company was in fact acting as the agent in a particular transaction or series of transactions.118 Likewise, the property of a company in no sense belongs to its members.119 The company is not a trustee of its property for its shareholder even where the directors have been appointed trustees of some or all of the shares in a company.120 A shareholder does not have an insurable interest in the assets of the company as restated in the case of

Macaura v Northern Assurance Co. Ltd.121

112

F.B Palmer, Private Companies: Their Formation and Advantages and the Model of Converting a Business into a Private Company, 11th ed,. Stevens, London, 1901, 6.

113 _{Farrar, n.48 at 66; Bonham & Soberman, n.73 at 5} 114 _{See CAMA s.37.}

115 _{[1887] A.C. 22. HL} 116

J. Birds et al., Boyle & Birds’ Company Law, Jordan Publishing Limited, Bristol, 2009, 59. See also Nigerian Civil Service Union (western State) v. Allen (1972) U.I.L.R. 316 at 319.

117 _{See, for example, Tunstall v Steigmann [1962] BCC 593.} 118

Ebbw Vale UDC v. South Wales Traffic Area Licensing Authority [1951] 2 KB 366; Pegler v Graven [1952] 2 QB 69

119_{Bank voor Handel en Scheepvaart NV v Slatford [1953] 2 KB 366. See also Coleg Elidyr (Caephill}

CommunitiesWales) Ltd v Koeller [2005] 2 BCLC 379, at 401.

120

Butt v Kelsen [1952] Ch 197

121 _{[1925] AC 619. Here an attempt by Macura to recover from the Insurance company the value of} the burnt timber which he had sold to the Irish Canadian Saw Mills Ltd in return for the entire issued share capital of the company to be held by himself and his nominees and for which an Insurance policy was subsequently taken against the timber in his name was rejected by the House of Lords which held that the Insurance company was not liable, there being no insurable interest in the property even though he owned all the shares in the company.

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The obvious lesson drawn from this case is that the company as a separate legal entity owns its own property and there is no legal connection between a share in the company and the company’s property. Shareholders generally benefit from this because it facilitated limited liability, as the company also owns its debt. The shareholders in any company cannot exercise any rights in respect of property owned by their company simply because they have no estate or interest in that property. Conversely, as established by Salomon’s case,122 the company has no estate or interest in the property of its members.

The artificial entity theory is also reflected in Nigerian company law jurisprudence. Indeed, separate legal personality and limited liability of members of corporations as held in Salomon’s case applies in Nigeria. For instance, section 37 of the Companies and Allied Matters Act 2004123 reflects the separate legal existence which accrues to a company once it has been incorporated. Section 37 of the Act provides as follows:

As from the date of incorporation mentioned in the certificate of incorporation the subscribers of the memorandum together with such other person as may, from time to time become members of the company, shall be a body corporate by the name contained in the memorandum capable forthwith of exercising all the powers and functions of an incorporated company including the power to hold land, and having perpetual succession and a common seal, but , with such liability on the part of such members to contribute to the assets of the company in the event of its wound up as mentioned in the act.

Therefore, the legal personality of a corporate body can only be established as a matter of law by production in evidence of the certificate of incorporation. Independent of its members, a company is now capable of exercising its powers as a body corporate.124

The courts in Nigeria have similarly, and without hesitation, acknowledged the separate existence of a company. In Marina Nominees Ltd v F.I.B.R125, the Appellant sought to avoid its corporate liability by claiming to be an agent of another company. Rejecting this, the Supreme Court observed inter alia, that-

122 _{[1887] A.C. 22. HL} 123 See CAMA 2004, s.37 124 _Ibid. 125 _{(1986) 2 NWLR 48}

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...the device of agency by using one incorporated company for the purpose of carrying on an assignment for another company or person must not overlook the fact that an incorporated company is a separate legal entity which must fulfil its own obligation under the law.