Star Insurance Brokers Limited V. Nicon Insurance PLC (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of the Federal Capital Territory, presided over by Valentine B. Ashi, delivered on the 12th of October, 2012.

Facts in Brief:

The appellant entered into a contract with the respondent’s predecessor, the National Insurance Corporation of Nigeria, wherein the appellant placed Insurance Risks and Pension Schemes with the respondent; following a dispute over brokerage fees the appellant sued the respondent at the lower court for unpaid commission; and the question arose, whether the suit ought to have been filed within twelve months, as prescribed by Section 26(1) of the National Insurance Corporation Act.

The notice of appeal on pages 75 to 81 of the record of proceedings contains five grounds of appeal from which the following issues for determination were formulated for the appellant, in its brief settled by Professor M. O. Adeyemi:

1. Whether the defendant/respondent, which was incorporated under the Companies and Allied Matters Act in the year 2002 and the National Insurance Corporation Nigeria, which was created by legislation (Act No. 22 of 1969, now Cap N54 2004 LFN), are one and the same person, (Grounds 1, 2 and 4).
2. Whether the Court below was right in holding that the limitation stipulated in Section 26 (i) of the National Insurance Corporation of Nigeria Act was applicable to oust the jurisdiction of the Court in this suit. (Grounds 3 and 5).

On issue one learned counsel submitted that the trial Court ought to have distinguished this case from UWUANYI v. NICON PLC (2004) 15 NWLR part 892 at 612, because the matter arose from Section 26(2) of the National Insurance Corporation of Nigeria Act, which regulates pre action notice in all suits, whereas Section 26 (1) which applies in the instant case affects only limited number of cases, i.e. acts done in pursuance of statutes or any public duty; that (1) does not apply to simple contracts as in this case; especially as the issue of legal relationship between the two bodies in the said judgment, which was found to be absurd by the lower Court, was arrived at per incuriam and should not be cited as precedent.

That the National Insurance Corporation is a creation of Statute embodied in Cap N54 of the 2004 LFN, with the name of the corporation prescribed in Section 1 of the Act; the name has not been amended by the National Assembly to “NICON Insurance Plc” or any other name.

Learned counsel submitted while referring to COMMERCIAL BANK CREDIT LYONNAIRS NIGERIA LTD v. OKOLI & ORS (2009) 5 NWLR PART 1135 AT 446 that where a company is taken over it does not lose its legal personality; and therefore UGWUANYI’S case was decided wrongly because the National Assembly has not changed the name of the National Insurance Corporation to NICON Insurance Plc, and this Court is not bound to follow its previous decision arrived at per incuriam, he referred to COOPERATIVE & COMMERCE BANK LTD v. OZOBU (1988) 3 NWLR part 451 at 306.

That NICON Insurance Plc is not known to the National Insurance Corporation Act; the respondent which was incorporated in 2002 under CAMA and the National Insurance Corporation of Nigeria created by an Act of Parliament are not one and the same entity, and the trial judge was wrong to have applied the provisions of the National Insurance Corporation Act to the respondent in this suit.

Learned counsel submitted that the trial judge was wrong to hold at page 71 of the record that he could not conclusively say that the respondent was a registered liability company in the absence of a certificate of incorporation, because such certificate was not necessary for the preliminary objection, especially as the parties have not joined issues on whether the respondent was registered under CAMA.

That in any event the name with which the respondent was sued showed that it was registered under CAMA, and had been referred to in several affidavits by the appellant without rebuttal by the respondent, thus giving this Court enough reason to set aside the ruling of the trial Court. He urged this Court to resolve this issue in the appellant’s favour.

On issue two, learned counsel submitted that even if the respondent and the National Insurance Corporation of Nigeria are one and the same, the trial Court erred in applying Section 26(1) of the National Insurance Corporation of Nigeria Act to hold that the action was statute barred.

That for the limitation to apply the corporation must prove that the act complained of or the cause of action in issue occurred in pursuance of an enactment or law or occurred in the course of execution of a public duty.

Learned counsel submitted that “public duty” connotes duties which an agency of the government owes to members of the public, breach of which causes a tortuous wrong, rather than duties owed to an individual.