A CRITICAL ANALYSIS OF THE REQUIREMENTS OF INSURABLE INTEREST UNDER THE NIGERIA LAW OF INSURANCE


A CRITICAL ANALYSIS OF THE REQUIREMENTS OF INSURABLE INTEREST UNDER THE NIGERIA LAW OF INSURANCE

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CHAPTER ONE

NATURE AND DEFINITION OF INSURANCE

1.0 INTRODUCTION

Risk and uncertainty are incidental to life. Man may meet untimely death. He may suffer from accident, destruction of property, fire, floods, earthquakes and other natural calamities. Whenever there is uncertainty, there is risk as well as insecurity. People always want to avoid the financial consequences of these risks e.g replacing personal property that is lost or damaged. Insurance exists because risk exists. Insurance cannot remove the risk or the likelihood that one might become a victim of risks, but it ensures the transfer of all or some of the financial impact.

Insurance is a contract between two parties (insurance company (A) and the insured or policyholder (B) in which the risk is transferred to the insurance company in exchange for the payment (in advance) of a token called Premium with the insurance company agreeing to make good the loss to the policy holder whenever he suffers any loss. 1

Social and economic changes open up new areas in which insurers are called upon to provide insurance coverage. Apart from natural risks to life, the risks to life from coups, kidnapping and political assassinations have become real and common.

1 Wale Onaolapo (MD/CEO), Sovereign Trust Insurance Plc. A paper delivered at the 6th Practical Maritime

Dispute Resolution Seminar. Lagos, Nigeria: May 22, 2014

Insurance is a form of risk management; a risk- transfer mechanism. It is a method of coping with risk. Its primary function is to substitute certainty for uncertainty as regards the economic cost of loss-producing events and the aim is to compensate the owner against the losses arising from a variety of risks which he anticipates to his life, property and business. It is a means of pooling of risks, under which a group of people who are subject to an insurable risk contribute regularly to a fund. The fund so created is utilized to compensate those members of the group who actually suffer a loss due to some unexpected calamity. Thus the loss of a few is shared by all the members on an equitable basis. The practices of insurance businesses as they exist today are relatively young in theft to motor insurance policy holder is part of the new areas where the services of insurers are needed. 2

Thus, insurance has become the champion to combat the risks insured against by the

insured and the reward of the promoter of this champion is reimbursement which places the insured in the same position he stands immediately before the risks occur and thus it has been jointly said ‘verily verily I say unto you brethren, if you belong to the right caucus and take the best insurance covers, no weapon fashioned against you including the EFCC shall prosper’.3

2 Olusegun Yerokun, Insurance Law in Nigeria (3rd) (Nigeria Revenue Projects Publisher, Lagos) [1992] , p. 1

3 Nigeria Tribune Wednesday, 21 February [2007]. p. 9

1.1 DEFINITION

Insurance laws do not provide a definition to explain the meaning of insurance, as even lawyers cannot give a definite definition.

The best a writer can do is to describe what is insurance and not to define insurance, that is, since there is no definite definition, the available description suffices as the definition of insurance for when there is no alternative, the available becomes the alternative. It is pertinent to point out here that a good definition must combine legal, economic and social viewpoints of insurance as to bring out the functions, features and purposes of the same.

Encyclopedia Britannica defines insurance as:

“A system under which the insurer, for a consideration (usually agreed upon in advance) promises to reimburse the insured or to render services to the insured in the event that certain accidental occurrences result in losses during a given period”. 4

Greene’s definition combines both legal and functional approaches as it states that:

“Insurance is an institution which reduces risk by combining under one management a group of object so situated that the aggregate accidental losses to which the group is subject becomes predictable but narrow limits”.

Green further explained that insurance include certain legal contract under which the insurer within certain consideration promises to reimburse the insured or render services in the case of accidental services or losses suffered during the time of the agreement. 5

4 http://www.britannica.com/topic/insurance (August, 2014)

5 Greene: Risk and Insurance (4th ed.)(Butterwoth, London) [1977] p. 49

Also, ‘Ivamy’, defined insurance from the legal and functional point of view, by bringing out the essential elements of insurance. He said;

“Insurance is a contract whereby one person called the insurer or assurer undertakes in return for an agreed consideration called the premium to pay another person called the insured or assured a sum of money or its equivalent on the happening of a specified event”. 6

The quoted part of Ivamy’s book above, made it crystal clear that the essential elements of insurance are the insurer, the insured and the consideration, which is known as ‘Premium’ in insurance contract.

Lord Choley and O. C. Giles preferred to suggest the prescription of what insurance is all about as the purchase of security, the assured anxious to protect himself from risk purchase from the insurer, a right to indemnify if the risk should materialize. The purchase price which the assured pay the insurer is known as the premium often an annual payment and the insurer’s promise to pay if the event assured against occur. It is embodied in what is called a policy.

Black’s Law Dictionary, 7th Ed, Bryan A. Garner define insurance to mean

“An agreement by which one party the insurer commits to do something of value for another arty (the insured) upon the occurrence of some specified contingency, especially an agreement by which one party assumes a risk faced by another party in return for a premium payment” 7

There has also been notable pronouncement on the meaning of insurance. Insurance was defined by Lawrence, J. LUCENA V CRAUFURD 8 as a contract by which one

6 Ivamy: General Principles of Insurance Law (4th ed,Butterworth,London.1984) p3.

7 at p. 802

8 [1806] 2 BOS & P.N.R 269 at 302

party in consideration of a sum of a price paid to him adequate to the risk become security to the other that he shall not suffer loss, damage or prejudice by the happening of the peril specified to certain things which may be exposed to them.

The Nigerian Court of Appeal, per Dennis Edozie, JCA (as he then was) in LIBERTY

INSURANCE CO. LTD. V JOHN 9 explained insurance to mean a contract whereby the insurer agrees to compensate the insured for the loss the latter may sustain through the happening of the event upon which the insurer’s liability may arise.

1.2 HISTORICAL DEVELOPMENT OF INSURANCE IN NIGERIA

The first insurance policy may be traced back to the time of the ancient Babylonian King Hammurabi who introduced the “Hammurabi Code”. ‘This code established the practice of forgiving a debtor his loans in the event of a personal catastrophe such as death, disability or loss of property.’10

The Marine Insurance business came up in the 14thcentury and has been referred to as the oldest form of organized insurance. The practice of insurance then spread to the United Kingdom in the 16th century, though it was still quite informal and was carried out in the House of Lloyds. After marine insurance, fire insurance came up

9 [1996] 1 NWLR (pt 423) 192 CA

10 (See: Mary M. Bob-Alli; Fundamentals of Insurance Operations at page 19).

after the Great fire of London and then life and accident insurance was developed. Upon colonialism and trade on the Western Coast of Africa by Europeans, modern insurance was introduced to Nigeria and this was at the beginning of the twentieth century. It was introduced to help reduce the burden of possible risk involved in trade and as a result of this; it was initially indulged in by foreigners and not Nigerian citizens. The increase in trade and commerce led to an increase in shipping and banking activities, thus, making it necessary for there to be some form of risk back up handled locally. The insurance companies in Europe appointed agents (Merchants) to arrange insurance cover for their trading concerns. These agents had the power of attorney to accept risks, but claims were still referred to the parent company, thereby making the merchants insignificant. These agencies and the few Nigerians employed in them had little or no knowledge of the insurance practice as they were not exposed to insurance practice before then.

The Royal Exchange Assurance Company which was a London based body opened a branch office in Lagos in 1921 and this was the first insurance company in Nigeria headed by Late George Golding. It enjoyed monopoly as the only insurance company for a period of about twenty-eight years when three others came up. (These three were the Legal and General Assurance Society, Norwich Union Fire Insurance Society and the Tobacco Insurance Company). By 1960, there were twenty-five insurance companies in Nigeria. Of the twenty-five insurance companies in Nigeria by 1960, twenty-two were foreign owned and three were indigenous. Patronage was however, quite low as most Nigerians were not aware of insurance and its importance.

With the lack of proper legislation and awareness about the industry, there was a rapid and rather unhealthy increase in the number of insurance companies after independence, bringing the number of insurance companies in Nigeria to eighty by 1975.

The insurance business in Nigeria began with the report of the J.C. Obande Commission of 1961, which was followed by other acts and decrees, such as the Insurance Companies Act of 1961, the Insurance Decree of 1976, the Insurance Special Supervisory Fund decree 1989 and other enactments. The National Insurance Commission is responsible for a lot of positive changes for Nigeria regarding insurance.

The J.C. Obande Commission report of 1961 resulted in the establishment of a Nigerian Department of Insurance in the Federal Ministry of Trade, which was later transferred to the Ministry of Finance. The Insurance Companies Act of 1961 classified insurance businesses into various classes for registration and provided forms for record keeping. The Insurance Decree of 1976 provided for the authorization of insurers, modes of operation, organization and transfers, administrative and enforcement guidelines, and penalties.11

The National Insurance Commission was established in 1997 with the responsibility of regulating and supervising insurance in Nigeria. The commission has since been the main insurance regulator in Nigeria. The Insurance Special Supervisory Fund decree of 1989 strengthened the Insurance Supervisory Board and included a provision mandating that all insurance companies contribute 1 percent of their gross earnings to the fund. As a result of the insurance decrees and developments since 1961, the insurance industry in Nigeria has been growing steadily. Incomes have increased at a rate of approximately 18 percent per year.

It should be noted that all companies before 1961 including insurance company, finance company etc were governed by the Companies Act of 1922. The situation remained like that until Nigeria adopted the new and its own insurance law.

The development of insurance has grown ever since with the recent re-capitalisation

which has made the Nigerian insurance industry to begin a new process of transformation.12 The insurance companies have, over the years, experienced certain challenges that gave rise to the need for reforms and transformations. insurable interest

11 Oke, Michael Ojo. Insurance sector development and economic growth in Nigeria. African Journal of Business Management Vol.6(23), pp. 7016-7023,13June, 2012.

12 Mr. Remi Olowude, Executive Vice Chairman, Industrial and General Insurance (IGI) in an interview with the Guardian; Thursday, December 13, (2007). p. 45

These challenges had hampered the growth of the industry and had adverse effect of its efficacy to handle the risk of those under its policy, thereby destroying the little faith the Nigerian people had in the industry. insurable interest

Today, insurance business in Nigeria covers a wide field ranging from life, property, goods in transit, liabilities to marine, aviation and petroleum with about 49 Insurance and Re-insurance Companies Operating in the market.13

1.3 NATURE OF INSURANCE CONTRACT

The Insurance Act 2003, which is the law of Nigeria, does not define what an insurance contract is. The interpretation provision of the Act only says that “Insurance“ includes “assurance“. In a number of cases, the Nigerian courts have widely defined Insurance Contract as

“Contracts whereby one person called the insurer undertakes in return for the agreed consideration called the premium, to pay another person called the assured, a sum of money, or its equivalent, on the happening of a specified event“.14

From the above case law definition of Insurance Contracts, there must be an element of uncertainty. In the case of life assurance where death is certain, the time of death must remain uncertain before a business of insurance can be consummated. Going

by the judicial definition the insurer must assume the risk as being transferred and

13 The Nigerian Council of Registered Insurance Brokers (NCRIB) via its President, Chief Dede Ijere,

while lauding the actions taken by the National Insurance Commission (NAICOM) on Recapitalization

process at the December edition of NCRIB members evening in Lagos. The Guardian, Thursday, December

13, (2002). p 45.

14 (See: Kayode v. Royal Exchange Assurance (1955-56) W.R.NL.R. 154).

by the judicial definition the insurer must assume the risk as being transferred and

should not be based on the discretion of the insurer. Under the Common Law principle and incorporated into Nigerian Statute no insurance contract is to be made on a life without an insurable interest.15

Whilst it is essential that the insured interest attaches to the policyholder, the Nigerian regime allows a situation whereby, under the customary law and Islamic law, one person assumes responsibility for the maintenance and care of the other even though the relationship is not through blood line.

It also goes without saying that Compulsory Insurance Contracts are essentially meant to protect the third party, e.g. the third party motor vehicle insurance policy. insurable interest

In practice, insurers are allowed to reinsure part of their risks with a view to mitigating their risk. This is purely an actuarial issue and not necessarily a classification of insurance contracts. The general judicial definition of Insurance does not distinguish between a life and non-life Insurance save for the purposes of classification.

Insurance contract have some distinction and exemptions from similar types of contracts. Some similar types of contracts are;

(i) Contracts of gambling and chanc

15 (See: Sections 56-58 of Insurance Act 2003).

The requirement of insurable interest which do not need to exist in gambling contracts makes gambling quite distinct from insurance even though there is an element of uncertainty in the two transactions.

(ii) Warranty, guaranty or any other surety contracts

An insurance Contract is essentially a primary contract between two or more parties while a classical contract of warranty, guaranty or surety is a collateral or secondary contract between parties.

(iii) Financial contracts such as hedging contracts/swaps/derivatives

The elements of direct premium and indemnity between the insured and the insurers distinguish an insurance contract from a financial contract. The contracts of hedging, swaps and derivatives are entered into on behalf of subscribers, who may or may not know the products the funds are being invested in or the underlying assets the profit interests are paid from. insurable interest

The other significant difference is the fact that profit taking (in form of interest and yield) is the essential element of investment in hedging, swap and derivatives, whereas the insurance contracts are based essentially on recompensation for a loss that may or may not happen. It is significant to note that regardless of the similarity in characteristics, insurers must be registered and be subject to the regulatory authority before such a transaction can be approved.16

16 See: Sections 3 and 4 of the Insurance Act 2003).

In other-words, a performance bond issued by an insurer may be treated as a contract of insurance whereas a bank guaranty given by a commercial bank may be viewed as banking product rather than an insurance product issued by a bank even though the two contracts are similar in nature.

Section 7 (g) of the NAICOM Act requires the regulatory Commission to approve standards, conditions and warranties applicable to all classes of insurance business.

Apart from the above industry standard setting, it is not generally required that individual terms and conditions of insurance contracts need to be submitted to the regulatory authority except in a situation of foreign reinsurance where the local insurer has to justify non availability of capacity of local companies in terms of size and complexity.

As to the nature of insurance contract, judicial exposition makes it more explanatory. As for back as 1766, Lord Mansfield, had stated contracts of insurance are contract of speculation. 17

It is speculative in the sense that the insurer agrees to make financial benefit or other consideration for an uncertain specified event. The insurer is not sure when it will happen. Lord Mansfield statement, in part, shows the nature of insurance contracts depending as an uncertain contingent event.

17 Carter V. Boehm [1766] 3 Burr 1905

Thus, contracts of insurance are aleatory. At this juncture, a distinction must be made between aleatory contract and wagering contracts. By law, wagering contracts are void, and not enforceable by legal process. As Aleatory contract is generally not void, but it does not possess the characteristic of a contract of insurance.

The case of UNIVERSITY OF NIGERIA NSUKKA V EDWARDS W. TURNER & SONS (W.A) LTD 18 is a good case in point. There, the plaintiff agreed to pay a premium of N51,660 a year, net over a period of 50years in return for a lump sum payment to it of N6million at the end of the period. It is apparent from the agreement that the principle of indemnity is violated in this case. The court found no difficulty in deciding that there is no insurance contract but in substance, a mere scheme of investment. The subject of insurance must also be distinguished from the subject matter of the contract of insurance.

Also, the subject matter of insurance maybe a physical object, a chose-inaction or liability by law or otherwise. In motor insurance contract, the subject matter of insurance is the motor vehicle which is exposed to accident. In personal accident or life insurance contract, it is the physical body of the assured. In burglary insurance contract, it is the property that is exposed to destruction. In a nutshell, it is the motor vehicles, the body of the assured, the property or building etc that constitute the physical object of the insurance.

18 [1965] L.L.R. 33

The subject matter of insurance is not limited to physical object only, but other transient interest. For example, chose-in-action can be subject matter of insurance. A chose-inaction is described as all personal rights of property which can only be claimed as enforced by action and not by taking physical possession. insurable interest

So, a chose-in-action is not physical or capable of being held physically but is one in which a person has a right.

Examples of chose-in-action are debts, rights under a trust, right arising out of a contract or tort, legacies, shares, patents and copyrights. In license or patent insurance, there is no physical object to assign, but only rights. The subject matter of insurance is therefore the monopoly of such rights. Similarly, in solvency insurance, the assured protection against the non-payment of debt and this is the subject matter. The subject matter of insurance may also constitute the liability imposed upon the assured. In motor insurance, for example, under the motor vehicle (third party insurance).

Act 1950,19 the insured interest in the third party. The legislation made it compulsory to the owners of motor vehicles to take out a policy of insurance.20

The subject matter of the contract must be sufficiently described in the proposal forms. The description must be adequate enough to enable the insurer to identify the subject matter, to define and slow the nature of the risk.

19 Cap 128 of the Laws of the Federation, (1958)

20 Section 3(1) of the Motor Vehicle (Third Party Insurance) Act, (1950)

During the currency of the policy, the subject matter may be subject to alteration or the claim subject to inflation. By virtue of this provision,21 the receipt of an insurance premium is a condition precedent to a valid contract of insurance and there shall be no cover in respect of an insurance risk, unless the premium is paid in advance. Unilateral increase in premium rates is forbidden!

1.4 CONCLUSION

This current chapter started with full insight into the various definitions of insurance both by Encyclopedia, eminent writers and judicial precedent. Subsequently the chapter also explain the nature of insurance contract which involves both the insurer and the insured. Further exposure was made on the historical framework of insurance from the 14th Century to how it became practice in Nigeria till date.

The current chapter also exposed the statutory regulation of insurance law which consist of The Marine Insurance Act, 1961, The National Insurance corporation of Nigeria Act 1969, The Insurance Act 1976, Nigerian Reinsurance Corporation Act, 1977. The National Insurance Commission was established in 1997 with the responsibility of regulating and supervising insurance in Nigeria. insurable interest

In conclusion, this chapter dealt with the nature and definition of insurance in Nigeria. This basis will usher into the major discourse of the current work.

21 Section 50(1) of Insurance Act, (2003).

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