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

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

CHAPTER ONE                                 

NATURE AND DEFINITION OF INSURANCE

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.

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. 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

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 thesame.

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 bycombining under one management a group of objectso situated that the aggregate accidental losses towhich the group is subject becomes predictable butnarrow limits”. Green further explained that insurance include certain legal contract under which the insurerwithin 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

4http://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 theinsurer or assurer undertakes in return for an agreedconsideration called the premium to pay anotherperson called the insured or assured a sum of moneyor its equivalent on the happening of a specifiedevent”.6

The quoted part of Ivamy’s book above, made it crystal clear that the essential elements ofinsurance 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. Thepurchase price which the assured pay the insurer is known as the premium often anannual 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 insurercommits 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 wasdefined by Lawrence, J. LUCENA V CRAUFURD8as a contract by which one

6Ivamy: 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 JOHN9explained insurance to mean a contract whereby theinsurer 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 Nigeriaby 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 businessin 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.12The insurance companies have, over the years, experienced certain challenges that gave rise to the need for reforms and transformations. 11Oke, 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. 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 DedeIjere, 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.

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 exemptionsfrom similar types of contracts. Some similar types of contracts are; (i) Contracts of gambling and chance 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

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