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HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 00199 of 1999
IN THE M OF THE INSURANCE ACT
AND AN APPEAL UNDER SECTION 67(3) OF INSURANCE ACT
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(AS REVISED)
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AND
KEVIS BERO HARRY
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In the High Court of Solomon Islands
(FRANKI, J)
Civil Case No. 00199
Hearing: 20th January 1999
Judgment: 22nd January 1999
Charles Ashley for the Applicant
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(KABUI J): This is an ex partlication for
leave to appeal by way of originating summons to the High Court for for the
determination of questions of law relating to the revocation of the
applicant�s appointment as the Controller of Insurance
in Solomon
Islands and the issue of a General Insurance Licence to the Solomons
Mutual Insurance Limited (SMI).
This application has been made pursuant
to section 67(3) of the Solomon Islands Insurance Act (�the Act�) (Cap
82). Section 67 of the Act states:
�(1) Subject to the provisions of subsection
(2), a person aggrieved by a decision of the
Controller under this Act may, within one month from the date on which
such decision is intimated to him, appeal therefrom by petition in
writing to the Minister who may, in his discretion,
uphold, revoke,
reverse or vary such decision.
(2)
Except as hereinafter provided, the decision of the Minister on an
appeal made to him under subsection
(1) shall be final and conclusive.
(3) A person aggrieved by a decision of the
Minister made under subsection (1) may, if it involves a question of
law, within one month from the date of which the decision is intimated
to him, appeal therefrom to the High Court
with the leave of that
Court.
(4) The Chief Justice may make rules for regulating
the practice and procedure (including the prescription of fees) in
connection with an appeal under subsection (4), and for better
carrying into effect the provisions of that
subsection.�
Subsection 3 above does not state the mode of appeal
so that the applicant thinks it can be done by way of originating
summons perhaps pursuant to order 58 of the High Court (Civil Procedure)
Rules 1964 (the High Court Rules), seeking
declarations.
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The facts as they are in the statement accompanying
the aation for leave are as follows. The applicant was the
Controller of Insurance in Solomon Islands since 1994. On 19th
November, 1998, the Prime Minister who is also the Minister of
Finance directed the applicant as the Controller of Insurance
(the
Controller) to issue a General Insurance Licence to the Solomon Mutual
Insurance Limited (SMI) under the
Act. On 20th November,
1998, the applicant advised the Minister that this could not be done
because SMI was being investigated
by the Police under the direction of
the Director of Public Prosecutions (DPP). In the meantime, certain
representations
were being made by SMI to the Minister resulting in the
applicant being further directed to issue a General Insurance Licence
to
SMI. On 27th November, 1998, the applicant informed the
Minister that he would consider appealing to the High Court under
section 67(3) of the Act. The next thing was the revocation by the
Public Service Commission (PSC) of the applicant�s appointment
as the
Controller in Solomon Islands on the advice of the Minister. He was
advised of this and the appointment
of a new controller [sic] on 3rd
December, 1998.
The next day, 4th December, 1998, SMI was
duly granted a Genersurance Licence by the new new Controller.
Obviously, the applicant
would have the right to challenge the
lawfulness of the revocation of his appointment as the Controller and
perhaps
the new one who replaces him. The lawfulness or the validity of
the General Insurance Licence issued to SMI would obviously
be
challenged as being of no effect in law.
What then is the appropriate remedy? Can the
applicant succeed by way of an appeal under section 67(3) of the Act?
Mr. Ashley has submitted that he is making his application on two
fronts. Firstly, he says, Order 61, rule 1 of he
High Court (Civil
Procedure) do require leave of the Court in the case of applications for
writs of certiorari
and mandamus. Secondly, he says, leave is also
required under section 67(3) of the Act. He argues that section 67(3) of
the Act does apply to the case of the applicant. This is particularly so
in view of the fact that there re are
no rules of procedure made by the
Chief Justice under section 67(4) of the Act. He further argues that
there
is a question of law involved in so far as the lawfulness of the
Minister�s action is concerned. He also Says that the
applicant also be
regarded as a person aggrieved under section 67(3) of the Act.
In my view, the applicant�s case based upon section
(3) of the Act is misconceived. The Act must be read as a ws a whole in
order to discover the intent of section 67 of the Act. The whole object
of the Act is to regulate the operation
of insurance business in Solomon
Islands. The regulating mechanism in the Act is the system of licensing
of insurance
operators in the country. This is contained in Part VIII of
the Act.
In my view, a decision by the Controller affecting
any licence of any operator of any insurance business in the country
may
be challenged under section 67 of the Act by a person aggrieved by way
of an appeal. This takes the form
of a petition in writing addressed to
the Minister who makes the final decision. The process of appealing does
not however stop there. If the decision by the Minister involves a
question of law, a person aggrieved by that decision
of the Minister may
appeal with the leave of the High Court. A person aggrieved by the
decision of the Controller
or the Minister cannot possibly be the
applicant who was himself the Controller. This is not the intention of
section 67 of the Act. As a matter of fact, the applicant had not made
any decision against which SMI could have appealed
to the Minister at
least in terms of section 56(2) of the Act. Subsection 2 states:
�Where the
Controller refuses to issues a licence or a renewal thereof, he shall
record the reasons for such
decision and shall furnish a copy thereof
to the applicant.�
That opportunity did not arise as his appointment was
revoked before he could refuse SMI�s application for a General Insurance
Licence. There is therefore no basis upon which section 67 could be
invoked by SMI. The General Insurance Licence
was granted to SMI by the
new Controller so that SMI need not appeal under section 67 of the Act.
There was no
need for it as SMI got what it wanted. If however, the
applicant did indeed make a decision refusing SMI�s application,
then it
was for SMI to appeal to the Minister under section 67(1) of the Act. If
the Minister should decide against
it, then it should consider appealing
to the High Court under section 67(3) of the Act. It is not for the
applicant
to do this. However, the facts being not very clear, it is
assumed that the applicant never did refuse SMI�s application
formally
in terms of section 56(2) of the Act. I therefore reject the applicant�s
case based upon section 67(3)
of the Act.
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Whilst Mr. Ashley does recognise the application of
Order 61, rule 1, of the High Court Rules, he does not actt act under order
61. That is to say, he has not filed any papers required under Order 61.
I therefore refuse leave under section
67(3) of the Act although the
applicant�s remedy may lie in the writ of certiorari.
Dated this 22nd day of January 1999
F. O. Kabui
Judge
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