In re Kevis Bero Harry [1999] SBHC 2; HC-CC 199 of 1999 (22 January 1999)

p class="MsoNormaNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> 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
br> (AS REVISED)

ass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> AND

KEVIS BERO HARRY

lass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1" align="left"> In the High Court of Solomon Islands
(FRANKI, J)
Civil Case No. 00199

Hearing: 20^th January 1999
Judgment: 22^nd 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.

class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> 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 19^th 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 20^th 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 27^th 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 3^rd December, 1998.

The next day, 4^th 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.

lass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1" align="left"> 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 22^nd day of January 1999

F. O. Kabui
Judge