African Ivory Insurance Company Ltd & Ors V. Commissioner for Insurance (1997)
LawGlobal-Hub Lead Judgment Report
AYOOLA, J.C.A.
The two short questions that have arisen on this appeal are:
i. whether the Commissioner for Insurance can be sued by using his
ii. whether the trial Judge was right when she held that an association which described itself as “Nigerian Insurers Association” was not a juristic person or has sued in a representative capacity”.
The questions arose this way: The appellants the first five of which are insurance companies and the sixth of which is Nigerian Insurance Association sued the Commissioner for Insurance claiming a declaration that the first five plaintiffs and the 6th plaintiffs members registered before the enactment of the Insurance Decree 1991 were not liable to pay the statutory deposit required by section 9 of the Insurance Decree Cap. 58 of 1991 and an order of perpetual injunction restraining the defendant “whether by himself, his officers, agents, servants or any of them or otherwise howsoever” from compelling the first five plaintiffs and 6th plaintiff’s members to pay the statutory deposit required by section 9 of the Decree.
The plaintiffs had obtained an order of interim injunction against the defendant but before pleadings were filed in the case, the defendant filed a notice of preliminary objection wherein it applied that the action be struck out on two grounds namely:
(a) that defendant was not a proper person to be made a party to the action and
(b) that the 6th plaintiff lacked locus standi as it was not an interested party or parties concerned or affected by the provisions of the decree “being sought to be interpreted.”
After she had heard counsel on the preliminary objection the learned Judge (Ukeje J) ruled in favour of the defendant and struck the action out in its entirety. Her reasons for upholding the preliminary objection summarised are first; that the office of the Director of Insurance (as the office was then known) was “unknown for the purposes of a civil suit” and therefore “the plaintiffs have failed to prove that they have the right to sue (as they have done), the defendant in his official title, contrary to section 40 of the Decree” and, that, the defendant not being a juristic person was not a proper party to be sued; and, secondly that the 6th plaintiff not being a body clothed with juristic personality could not sue in its own name and having not complied with pre-requisites prescribed by rules 1 and 3 of Order IV of the Federal High Court Rules could not sue in a representatives capacity. She had erroneously described the 6th plaintiff as “the Nigerian Insurance Association” to which reference had been made in section 65 of the Insurance Decree 1991 (“the Decree”).
The appellants (herein in this judgment described as “the plaintiffs”) have appealed from the decision of the judge on the grounds that she erred in all the reasons she had given for upholding the preliminary objection. The Commissioner for Insurance had not filed any brief, notwithstanding that the plaintiff duly filed and served on him; their appellants’ brief of argument. The appeal was heard pursuant to Order 6 and 10 of the Court of Appeal Rules on the appellant’s brief which I acknowledge was carefully prepared.
Section 40 of the Decree established the office of the Director of Insurance. The nomenclature of that office had since been changed by the Insurance (Special Supervision Fund (Amendment) Decree 1992 (No.262 of 1992) to the Commissioner for Insurance but the change neither affected the functions and powers of the office nor is it of any material significance to the issues on this appeal. Subsection 1 of section 40 as it originally stood provided that
“There shall be appointed by the President, Commander-in-Chief of the Armed Forces, a Director of Insurance for the purposes of this Decree whose office shall be in a department of the Ministry.”
Subsection 3 of section 40 prohibited the Director and, such other officers as are appointed pursuant to subsection 2 as may be necessary for the administration and enforcement of the Decree from interfering “unreasonably with the affairs of a person affected by his activities.” Section 40(4) provides that
“A power conferred on the Director by this Decree may be exercised by the Deputy Director or any other Public Officer who produces an instrument signed by Director or Deputy Director authorising him, either generally or on any special occasion, to exercise the power on his behalf and references to the Director in his Decree shall he construed accordingly.”
The powers vested in the Commissioner for Insurance by the Decree included the power in relation to all Insurance Companies, to register (section 5) cancel registration (section 7) and approve the appointment of Chief executives (section 12) and in relation to the insurance industry generally exercise supervisory and regulatory powers that can be distilled in several sections of the Decree and particularly in sections 42 – 47 and in section 73 which empowers the Commissioner to exercise disciplinary powers on insurers as prescribed in that section. There can be no doubt, from the foregoing that the Commissioner wields enormous powers in the insurance industries.
However, the Decree did not provide that the Commissioner could sue or be sued in his name, that is to say, by the title of his office. Section 67(2) of the Decree provided that:
“Without prejudice to the powers of the Attorney-General of the Federation under the Constitution of the federal Republic of Nigeria, the Director may initiate criminal proceedings and prosecute same under his own name.”
The learned judge discussed extensively this provision and applying the canon of interpretation “expression unius est exclusio alterius” came to the conclusion that the intendment of the Decree was to clothe the Director with only powers of prosecution. This reasoning, to my mind is only superficially attractive. The canon of construction “expressio unuis est exclusio allerius” is to be applied only where it logically and reasonably follows that the expression of one thing leads to the inference that another is excluded. This must depend on the context in which the thing expressed had been expressed. In this case, section 67 was not dealing at all with the powers of the Commissioner to sue or he sued, but rather, for avoidance of doubt, with the non exclusivity of the powers of the Attorney-General of the Federation to prosecute offenders in regard to offences under the Decree. It is evident that section 67 was intended to qualify the wide prosecutorial powers of the Attorney-General of the Federation as far as offences under the Decree were concerned. Viewed in this context, although the learned Judge was correct when she stated that:
“The canon of interpretation was based further on the argument that there was no reason for the legal draftsman to mention some only of the possible items unless the intention was that they were to he the only ones to he dealt with, so that the rest are excluded.”
She erred in not recognising that when dealing with the powers of the Attorney-General of the Federation vis-a-vis other public officers to prosecute for offences under the Decree, there was no need to mention whether or not the Commissioner could sue or he sued in a civil action. In short, the canon of construction relied on by the learned Judge does not apply in this case.
The main question on this appeal which is whether the Commissioner for Insurance could be sued eo nomine can, I venture to think, be determined without necessarily discussing at length the cases on which the learned Judge relied for the view she held that the Commissioner not being a juristic person and not being vested with statutory power to sue or be sued could not be sued eo nomine. The cases referred to in the ruling are Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558; The G.O.C. v. Fakayode (1994) 2 NWLR (Pt.329,) 744; Ndoma-Egba v. The Government of Cross-River State (1991) 4 NWLR (Pt.188) 773. Much that was pertinent to this case in Ndoma-Egba v. The Government of Cross River State (supra) and G.O.C. v. Fakayode (supra) were obiter dicta. In the former case although useful pronouncements of general principles were made, the question whether any of the parties to the case could sue or be sued did not arise. In the latter case, it seemed to have been accepted without argument that since the office of the Commissioner of Police was known to the Constitution, he could be sued eo nomine while the Divisional Police Officer, which was an office set up merely for administrative convenience of the police, was unknown to the law. Of more relevance to the present case, as far as statement of principle is concerned, is the case of Fawehinmi v. NBA (supra) which contained illuminating discussion of several of the relevant authorities both local and foreign. The proposition applicable to, the case at hand that can be distilled from the authorities can be shortly stated. Where a body or (office) is created by statute notwithstanding the absence of an express provision thereon as to its capacity to sue or be sued, the right to sue and be sued may be inferred from the statute after a careful and close reading of the provisions of the relevant statute. To infer aright to sue the officer or body eo nomine regard may well be had to the nature of the powers and functions vested in the office or body, the extent to which such powers and functions may affect or impinge on the rights of other persons and the injustice that would arise from inavailability of means of redress should the office exercising such powers or performing such function not be subject to any kind of proceedings. On the other hand, if inability to sue in order to enforce the powers vested in it or in support of the exercise of its functions will make the powers and functions ineffective a right to sue eo nomine would readily be inferred. The proposition shortly stated above can be seen in operation in such cases as Kpebimoh v. The Board of Governor Western Ijaw Teachers Training College (1966) 1 NMLR 130; Thomas v. Local Government Service Board (1965) 1 All NLR 168 and Solicitor General Western Nigeria v. Adedoyin (1973) UILR 143 all of which have been discussed in Fawehinmi v. NBA (no. 2) (supra) That proposition can no doubt be more readily applicable when the action is one such as the present one, to protect rights claimed in public law from threatened infringement. The realistic view in such a case is to make the office vested with powers and functions which may in their exercise and performance lead to such infringement amenable to legal proceedings eo nomine.
In the present case the Commissioner is vested with enormous powers and functions which may affect insurance companies. Section 9 of the Decree which is at the heart of the plaintiffs’ case stipulated that a person intending to carry out insurance business in Nigeria after the commencement of the Decree shall deposit the share capital with the Central Bank. The Commissioner it is alleged threatened to penalise as provided in section 8, the plaintiffs and those who are members of the 6th plaintiff association should they fail to comply with section 8. The contemplated penalty they alleged would cause the insurers concerned irreparable damage. It is evident that the plaintiffs have not contested with the validity of section 9 but were concerned with its applicability to them. It is thus that the dispute was between them and the Commissioner who had wanted to apply that section to them. In these circumstances I have no difficulty in coming to the view that it would be unjust to hold that the Commissioner could not be sued eo nomine. The holder of the office may change but as long as the Decree stood as it was the office of Commissioner established by it with powers and functions that may be operated detrimentally against the interest of the plaintiffs remained. In my view the error the learned Judge fell into was in not relating the general principles concerning the capacity of the Commissioner to be sued eo nomine to the particular circumstances of the case which a careful and close reading of the Decree would have made manifest. In the result, I feel no hesitation in coming to the conclusion that the learned Judge erred in the view she held that the defendant could not be sued in his official title.
The second question can be dealt with much more shortly. The learned judge confused the Nigeria Insurance Association established by section 65 of the Decree with the Nigerian Insurers Association which is the 6th plaintiff and which as the affidants on record show was a company limited by guarantee and was consequently a legal person. The Judge was manifestly in error in describing the 6th plaintiff,” whose identity she had misapprehended, as “not being a juristic person.” Flowing from this error was the unnecessary consideration of the question whether the 6th plaintiff had complied with the prerequisite of suing in a representative capacity. It is clear that the 6th plaintiff a juristic person claimed in its own right to protect its own interest. It was premature at that stage of proceedings when pleadings had not been filed to determine whether such right or interest inhered in it as to give it standing to sue.
It is evident that for the reasons contained in this judgment the appeal must be allowed. In the result, I would allow the appeal and set aside the ruling upholding the defendant’s preliminary objection and the order striking out the action. In place therefor, I would overrule the objection and order the case to proceed. The case is therefore remitted to the Federal High Court to be dealt with as may be appropriate.
Other Citations: (1997)LCN/O350(CA)
