[1]      This is an application for Judicial Review in pursuance to Article 125       (1) (c) of the Constitution as read together with section 123 of the    Insurance Act (Cap 98) (hereinafter referred to as “the Insurance Act”).    The Authority’s decision being impugned is that of the Respondent's ,               which has replaced the Seychelles International Business Authority           (hereinafter referred to as “SIBA”), by virtue of the repeal of the        International Business Authority Act, 1994 by the Financial Services          Authority Act of 2014 (hereinafter referred to as the “FSA Act”). It is       clearly provided at section 46 (2) (c) and (e) of the FSA Act that, ‘any    proceedings in respect of acquired rights under SIBA Act continues          as if   the Act had       not been passed.’

[2]      The Petitioner being the registered owner of a motor vehicle, Registration Number S 8093, has petitioned this Court for the Judicial Review of the          decision of the Respondent dated the 13^th day of January 2014 whereby       the Respondent refused to entertain the claim of the Petitioner for        compensation under the Policy Owners Protection Fund, being a           statutory Fund established under the Insurance Act 2008, (hereinafter     referred to   as the “POPF”), ‘for making of payments for compensation to      eligible persons who suffer losses and/or damages as a result of accidents    caused by 'uninsured drivers on the roads in the Republic of Seychelles'.

[3]      The Petitioner claimed for compensation from the Respondent for    damages sustained to his said vehicle in a road accident which occurred        on the 13^th  day of January 2013.

[4]      The Petitioner, as per the averments at paragraph 5 of his Petition, prays for reliefs of a writ of certiorari to quash the decision of the Respondent       and a writ of mandamus compelling the Respondent to pay to the    Petitioner compensation which he is entitled to under the POPF.

[5]      The grounds on which the relief are sought are as follows:

(i)       Firstly, that the Respondent acted illegally in the light of the fact     that the Respondent failed to determine and to compensate the Petitioner’s claim as the Respondent is required and bound to do     pursuant to section 88 (1) (b) as read with section 91 (1) of the        Insurance Act but instead determined, considered and assessed the     Petitioner’s claim based on matters extraneous to the requirements of the afore-mentioned section 88 (1) (b) as read with section 91 (1)          namely, that, “the Petitioner failed to show that his person/or his          business has suffered substantial financial adversity due to the loss          of use of his vehicle which would justify compensation under the    POPF, in view that the Petitioner had independently been able to     meet the full cost of reparation for his vehicle.”

(ii)      Secondly, that the Respondent’s decision was unreasonable as the decision was so outrageous that no sensible Authority acting      with due appreciation on its responsibilities would have decided to adopt.

(iii)     Thirdly, that the Respondent’s decision was an abuse of power in   that it exercised its power for an unauthorized purpose disregarding      relevant considerations and taking into account irrelevant   considerations; and

(iv)     Fourthly, that the Respondent acted in breach of the rule of natural justice.

[6]      The Respondent denies those averments and avers that there were reasonable grounds to reject the claim more particularly, in that the purpose of the POPF as set out in section 88 (1) of the Insurance Act provides that ‘the authority shall establish and maintain in accordance           with this section, a Policy Owners’ Protection Fund for the purposes of: (a)           Indemnifying and compensating in whole or in part or otherwise assisting          or protecting policy owners and others who have been prejudiced in    consequence of the inability of registered insurers to meet their liabilities        under life policies and compulsory insurance policies issued by them’.

[7]      It is thus argued by the Respondent that in line with section 88 (1) (a) of the Insurance Act, the Respondent acted in their lawful capacity in    rejecting the Petitioner’s claim and was not as alleged, acting outside the      scope of its powers and abusing its process and that the considerations it   took were legitimate and valid.

[8]      It was further submitted by the Respondent that upon an assessment of   the Petitioner’s claim to the POPF,  it was found that the Petitioner       had    failed to show that his person and/or business had suffered substantial financial adversity or difficulty due to the loss of use of his vehicle         which          would justify compensation under the POPF leading to the committees finding that the Petitioner was able to independently meet the full cost of           reparations for his vehicle.

[9]      It was further submitted that the FSA further, rightly refused to entertain          the claim of the Petitioner under section 88 (1) (b) of the Insurance Act in       that the FSA had a discretion as to whether to effect payment from the       Fund and has a right to do so on any reasonable ground. Reference was    made to the case of (Moustache v Guardian Royal Exchange Ltd      (1980)) in that regards enunciating the rule that, ‘as far as the insurer’s           obligation is concerned, that the person injured by reason of another’s      fault has a           cause of action against the person who committed the fault.’

[10]    The Respondent adopted the above reasoning in arguing that same          principle was to be and had been applied by the FSA in considering the          Petitioner’s claim hence denying his claim.

[11]    It was further submitted in the alternative, that the Respondent      otherwise,   had a discretion as to whether to effect payment from the       POPF and has a    right to refuse to do so on any reasonable ground.

[12]    Now, a brief summary of the facts of the case giving rise to the claim of     the Petitioner to the FSA is as follows:

          (a)      The Petitioner was insured with SACOS under a motor commercial                              third party insurance cover which was restricted to third party                           liabilities for repair cost of any damage to promptly not exceeding                            its value immediately prior to the loss and; death or bodily injury                            or in damages arising out of an accident caused by or in                                       connection with the use of a motor vehicle or the loading of the                     motor vehicle.

          (b)      On the date of the accident as afore-mentioned, vehicle S 8093 was                    being           driven by one Mr William Bibi, an employee of the Petitioner                      who was on his way to drop a client at the airport. According to the                   police report, Mr. Bibi claimed that he saw vehicle S 16208                                 overtaking him and colliding into vehicle S 14500 which was being                      driven in the opposite direction. Vehicle S 16208 was a stolen                      vehicle being driven by Mr. David Mousbe (as confirmed by the                      police). As a result of the impact between the two vehicles, vehicle                            S 16208 collided with vehicle S 8093.

          (c)      Petitioner lodged a claim for compensation for damage to his                              vehicle with SACOS Insurance Company Limited (hereinafter                             referred to as “SACOS”), against the policy of vehicle S 16208.                                SACOS refused the claim on the ground that vehicle S 16208 was                        at the time of the accident being driven by an unauthorised person              who had stolen the said vehicle. SACOS informed the Petitioner                           that the company was not in a position to entertain the claim since           at the time of the accident, S 16208 was being driven by an                                unauthorised person and not covered by the policy of insurance,                        hence advising a civil matter as against the tort feasor namely the                       ‘unauthorised driver’.

          (d)      By way of a ‘without prejudice’ letter 28^th day of May 2013,                                 Learned Counsel Mr. G. Ferley wrote to FSA on behalf of the                               Petitioner as far as the result of the claim from SACOS was                                       concerned and the latter being specific to terms of the Policy of                            Third Party Insurance Cover. Counsel Ferley by the same letter                         claimed on behalf of the Petitioner under section 88 (1) (b) as read                             subject to the provisos of section 91 (1) of the Insurance Act for                     compensation to the Petitioner in respect of the damage suffered by               his said vehicle arising out of the use of the motor vehicle on the                         road, whether or not such use is required to be covered by a policy                     of insurance in respect of third party risks under the Motor Vehicle              Insurance (Third Party Risks) Act.

            It was further specified in the same letter that the Petitioner was                 precluded (and rightly so) from claiming compensation under the                      Motor Insurance (Third Party Risks) Act, in that the damages                      suffered were not covered under the policy of insurance more                     particularly in not being “death of, or bodily injury to, any person                          caused by or arising out of the use of the vehicle on the road..”

            It was emphasized in the claim that albeit the driver and owner of                      the said vehicle being identified and residents of Seychelles and                        on a balance of probability an action may be successful against the                  driver, because the liability of the driver in any event is not covered                 by the policy of insurance as stated in the letter of repudiation by                           SACOS, the word ‘and’ used in the said latter mentioned section 91                          (1) of the Insurance Act, emphasizes that all the four limbs, (a) (b)                     (c) (d) of the said section of the Insurance Act must be met before                      the POPF can avoid liability to pay the claim.

          (e)      By way of letter of the 13^th day of January 2014, FSA informed                           the Petitioner in a gist that, ‘based on the merits of the case, his                     claim for compensation under POPF for total loss of vehicle and total                       loss of earnings could not be entertained and that the Committee                     was of the opinion that he failed to show that his person/and/or his                business had suffered substantial financial adversity or difficulty                        due to the loss of use of his vehicle which would justify                                                 compensation under the POPF , in view that  he has independently                          been able to meet the full cost of reparations for his vehicle’.

[13]    On the basis of those facts, I shall now proceed to consider the grounds    urged in this Petition.

[14]    In considering the grounds I have also given due consideration to the       submissions of both mentioned Learned Counsels’ on their clients’      behalf.

[15]    It is trite but I deem it fit to be restated before embarking on the main       issues involved in this matter that the system of Judicial Review is       radically different from the system of Appeals. When hearing an Appeal     the Court is concerned with the merits of the decision under Appeal.       When entertaining a Judicial Review of an administrative act or decision,           the Court is concerned only with three specific grounds of challenge. In    the case of           (Council of Civil Service Union v/s Minister for the Civil   Service       (1985) AC 374), Lord Diplock identified and   distinguished those as follows. The three grounds of challenge are        illegality, irrationality     and    procedural impropriety. In considering           those grounds, the Court should not pay a blind eye (so to speak), to the fact that the distinction between merits on appeal and grounds of   challenge on Judicial Review is not rigid, in that can be remedied either on Appeal or on Judicial Review hence possibility of overlap in between         the two systems.

[16]    I will now treat the grounds on which the reliefs are sought as cited at      paragraph 5 (i) to (iv) of this Judgment (supra).

[17]    Firstly, on the issue of legality. The Petitioner avers that the Respondent acted illegally in the light of the fact that the Respondent failed to      determine and to compensate the Petitioner’s claim as the Respondent is       required and bound to do so pursuant to section 88 (1) (b) as read        with   section 91 (1) of the Insurance Act but instead determined, considered           and assessed the Petitioner’s claim based on matters extraneous to the     requirements of the afore-mentioned section 88 (1) (b) as read with        section 91 (1) namely, that, “the Petitioner failed to show that his       person/or his business has suffered substantial financial adversity     due to          the loss of use of his vehicle which would justify compensation under the     POPF, in view that the petitioner had independently been able to meet      the full cost of reparation for his vehicle.”

[18]    The entity of the law is always defined, certain, identifiable and directly    applicable to the facts of the case under adjudication. Therefore, the           Court may determine the legality of any administrative decision, which         indeed, includes the issue whether the decision maker had acted in        accordance  with the law, by applying the litmus test, based on an           objective assessment of the facts involved in the case.

[19]    It is to be noted that the relevant provisions of law in issue are as    enumerated above namely, sections 88 (1) (b) as read subject to 91 (1) (a) to (d) of the Insurance Act as rightly recognised by FSA in their letter       of the 13^th day of January 2014 to the Petitioner ‘repudiating the    claim’.

[20]    Now, Section 88 (1) provides that:

          ‘The Authority shall establish and maintain in accordance with this          section, a Policy Owners’ Protection Fund for the purposes of-

          Section 88 (1) (b) provides that:

          ‘subject to section 91 (1), compensating persons in respect of damage       arising out of the use of a motor vehicle on the road, whether or not such     use is required to, be covered by a policy of insurance in respect of third      party risks under the Motor Vehicles Insurance (Third Party Risks) Act.’

          Section 99 (1) in turn provides that:

          ‘No compensation shall be paid under section 88(1) (b) in relation to a      motor           vehicle the prescription use of which is covered by a policy of         insurance in respect of third party risks under the Motor Vehicle or claims    Insurance (Third Party Risks) Act, where the owner or driver of the motor         vehicle at the time of such use-

          (a)      has been identified;

          (b)      is resident in Seychelles;

                   Would, on a balance of probability, be liable in damages in

          (c)      proceedings instituted against the owner or driver in a court of law                     in respect of the damages arising out of such use; and

          (d)      would be covered in respect of the liability by the policy of                                  insurance’.

[21]    A careful reading of section 88 (1) of the Insurance Act displays without   any form of ambiguity that the FSA had the legal powers to make a          decision on behalf of the POPF upon a claim being lodged under the said sections of the Insurance Act. However, what is important to be     determined at the           instance of the first ground on which the Judicial           review is sought, is whether its decision was within the legal requirements as per considerations set out in section 91 (1) of the      Insurance Act for the purpose of the claim in issue.

[22]    The relevant considerations are clearly set out at sub-sections 91 (1)         (a);(b);(c); and (d) of the Insurance Act as above-referred and the          purposive    rule of interpretation is to be adopted towards its   interpretation in view of           mode in which the sub-sections have been drafted ‘by the use of semicolons’ and the word ‘and’ at the end of the      third consideration connecting the inter dependent and or related clauses, hence, the need for a cumulative reading of the said          considerations for the purpose of giving effect to its true meaning.

[23]    It is abundantly clear that the consideration given by the FSA namely

          that, “the committee is of the opinion that your client has failed to show    that his person and/or his business has suffered substantial financial          adversity or difficulty due to the loss of use of his vehicle which would        justify compensation under the POPF, in view that your client has      independently been able to meet the full cost of reparation for his vehicle”,           is but not one of the considerations cited in ‘mandatory terms’ at section 91 (1) (a) to (d) for the purpose of payment of compensation under the           said section as read with section 88 (1) (b) of the Insurance Act. It is also      apparent that the proviso to section 91 (1) does not leave room for the           discretion of the FSA to determine any additional considerations for the     purpose of a claim under that relevant section.

[24]    If at all a discretion based on prejudice, by the FSA, this could be argued in respect of the applicability of section 88 (1) (a) and not the current        provisions of section 88 (1) (b) as read together with section 91 (1) of the       Insurance Act.

[25]    In that light, in view of the absence of any evidence in the bundle    submitted to the Court for the purpose of this Judicial Review and         especially noting the contents of paragraph 4 of the letter of      communication of the FSA’S decision to the Petitioner of the 13^th day of          January 2014 to the above effect, this Court finds that contrary to the           provisions of section 91 (1) of the Insurance Act, the FSA based its decision on irrelevant considerations as above cited hence its illegality.

[26]    In that same light, it is to be restated, as clearly held in the case of (Daniel Adeline versus Koko Cars (Cs No. 57 of 1995)), in that cases of        this nature are indeed sad cases where ‘innocent victims’ of accidents are    deprived of compensation in respect of injury and in this case ‘damage to       property’ in terms of total loss of vehicle’ under the policy of third party insurance risks in view of the motor vehicle in issue having been ‘stolen’ at the time of the accident also giving rise to the very question as to   ‘custody’ of the motor vehicle at the relevant time.

[27]    As decided in the above-mentioned case, situations of this nature    became covered by the Insurance (Compensation) Fund Act (Cap 98).         This Act brought our law in line with the English ‘Motor Insurers Bureau Agreement of 1972’, which provides for compensation to third party victims of road accidents in cases where the victim is deprived of     compensation by      the absence of insurance or effective insurance or         where the driver cannot           be found. That Act was replaced by the Insurance (Amendment) Act No. 24 of 1995. It made provision for the   granting of similar relief under ‘the   policy Holders Protection Fund’           created under section 45 of the Insurance Act No. 28 of 1994 at its          section 45 (1) (8) of the said Act now replicated in section 81 (1) (b) and       91 (1) (a) to (d) of the Insurance Act.

[28]    In the present case, as admitted by all parties, the considerations under   subsections (a) and (b) are present. As regards (c) based on the Police   Report as per bundle produced by FSA, an action brought against the driver of the motor vehicle in issue under article 1383 (2) should on a   balance of probabilities succeed unless he is able to establish that the      accident occurred due to the sole negligence of the injured party or the         act of a third party or an act of God external to the operation or    functioning of the vehicle. However, the fourth element contained in (d) is          not satisfied as neither the owner nor the driver would be covered in           respect of the liability by the policy of insurance hence, no ground for the          FSA to have refused to entertain the claim of the Petitioner at first     instance based on the ‘current provisions of the law as cited’.

[29]    In the ultimate analysis therefore unless the Petitioner decides to sue the driver concerned being the thief as above-illustrated in his capacity as      driver of the offending vehicle, this Court finds that the FSA established          under the Insurance Act should consider granting adequate     compensation to the Petitioner under the POPF.

[30]    Secondly, on the ground of unreasonableness/and breach of the rule of   natural justice (inter alia, the ‘audi alteram partem rule’). The Petitioner        avers that the Respondent’s decision was unreasonable as the decision           was so outrageous that no sensible Authority acting with due    appreciation on its responsibilities would have decided to adopt and that the Respondent acted in breach of the rule of natural justice (it is to be           noted           that the second and fourth grounds on which Judicial Review is          sought in this case is being treated together for the purpose of this Ruling,     in view of its proximity in terms of contents and principles to be applied).

[31]    On the issue of unreasonableness of the Respondent’s decision in   question, the test to be applied by the Court in determining the          rationality or reasonableness of the impugned decision in matters of     Judicial Review, one has to invariably go into its merits, as formulated           in the matter of (Associated Provincial Picture Houses V/s Wednesbury Corporation [1948] 1 KB 223), ‘Where Judicial Review is      sought on the ground of unreasonableness, the Court is required to   make           value Judgments about the quality of the decision under review. The           merits and the legality of the decision are interrelated. Unreasonableness           is a stringent test which leaves the ultimate discretion with the Judge       hearing the review Application.’ To be unreasonable, an act must be of     such a nature that no reasonable person would entertain such a thing, it      is one outside the limit of reason (In that light refer to the         3^rd Edition,          2001 of Michael Molan, Administrative Law). Applying this test thus,    leads the Court to examine whether the decision in question is        unreasonable or not, bearing in mind however, that ‘Judicial Review is       not concerned with the merits of a decision but with the manner in       which the decision is made. Thus the Judicial Review is made effective by the Court quashing an administrative decision without substituting its           own decision and is to be contrasted with an Appeal where the        Appellate Court substitutes its own decision on the merits for that of     the administrative officer. (Vide Lord Fraser RE: Amin [1983 2 All ER 864 at 868.

[32]    In the determination of the reasonableness of the current impugned         decision of the Respondent, the Court has to make a ‘subjective           assessment’ of the entire facts and circumstances of the case and           consider whether the decision of the Respondent is reasonable or not.

[33]    In considering reasonableness, the duty of the decision-maker ought to    have been simply, to take into account all relevant circumstances as they        exist at the date of the hearing including the objective of the Insurance Act that he must do in what may be simply termed as “broad common       sense’ and come to a conclusion giving such weight as he thinks right to        the various factors in the situation. Some factors obviously may have        little           weight and others may be more decisive but it is quite wrong for     the decision maker to disregard and or exclude from his consideration matters, which he ought to take into consideration (Per Lord Green in     Cumming v/s Jansen [1942] All ER at page 656).

[34]    Now as clearly dealt with in the analysis of the first ground of contention           on the legality of the decision of the FSA, it is repeated that four       considerations ought to have been taken by the FSA in the current        circumstances of the case of the Petitioner under section 91 (1) (a) to (d)      of the Insurance Act.

[35]    It is evident upon a very careful scrutiny of the bundle submitted to          Court for the purpose of this hearing, by FSA, that there is no evidence      in the bundle save for the mention of the above provision of the law in        the determination of the claim of the Petitioner which shows evidently      that the Respondent knew that it ought to take into consideration the provisos as above-referred (supra) succinctly.

[36]    On the contrary, what transpires, is that the Respondent, albeit noting    what are the relevant consideration under section 91(1)  (a) to (d) as read   with section 88 of the Insurance Act, goes on to completely disregard the said provisos, I would venture to say ‘in toto’ “relying rather on a proviso which does not exist under the relevant section and to the   defence taken by the insurance company in the alternative when the very    insurance company referred the Petitioner in view of the non-coverage of     the liability of the claim under the third party insurance policy to the   FSA under the Insurance Act. In other words, I will even go on to state           that this is not only an unreasonable decision of the FSA but also ‘a         dereliction of its statutory duty’ under the Insurance Act in the         circumstances.

[37]    To argue failure of financial loss and or lack of prejudice to the Petitioner as per the provisions of section 88 (1) (a) is not only unreasonable given          the specific nature of the Petitioner’s claim but also contrary to the spirit   of the provisions of both sub-sections of section 88 of the Insurance Act.        Subsection 1 of the section 88 caters for “inability of registered insurers         to meet their liabilities issued by them” and sub-section (b) caters for the     specific circumstance for ‘policy of insurance in respect of the third party risks under the Motor Vehicles Insurance (Third Party Risks) Act.

[38]    It is thus clear that contrary to the section 88 (b) as read with section 91 (1) (a) to (d) of the Insurance Act, the Respondent based its entire       decision on irrelevant considerations in that the “petitioner failed to show     that his person and/or his business has suffered substantial financial      adversity or difficulty due to the loss of use of his vehicle which would           justify compensation under POPF , in view that the petitioner has   independently been able to meet the full cost of reparation of his vehicle’.

[39]    Further, to make matters worse and leading to the ‘absurdity’ of the         decision of the FSA, it did not even consider it fit to call upon the        Respondent to make any representation to the FSA when considering an       issue foreign to the relevant legislation under which the claim was    petitioned and not within the knowledge of the FSA, simply based on           documentations provided to it for the purpose of the claim, hence leading          to a decision based on mere assumptions on irrelevant considerations    not covered by section 91 of the Insurance Act in any way whatsoever.

[40]    Albeit the Insurance Act not conferring any condition for the ‘hearing       procedure’ perse under section 91, it is only reasonable and in view        of the principles of natural justice that if a decision is to be considered  other than in accordance with the provisions of the law and or non- observance of conditions set under the law, the other party ought to be   heard at least at a ‘mandatory’ level. But in this case total disregard by         the FSA to that basic principle, hence unreasonableness and irrationality      of the decision.

[41]    Based on the above analysis of the specific circumstances of the decision of the FSA applying the defined subjective test, I find and it is my considered view that the Respondent in this matter failed to consider the       claim of the Petitioner in wrongly considering the evidence on record and       considering irrelevant facts and the entire circumstances of this case           inclusive of erroneously taking into account the advice of SACOS to its     clients as to personal liability of the driver and or owner and ultimately    disregarding the objective and rationale of the InsuranceAct hence arriving at an unreasonable decision.

[42]    It is thus obvious that the Petitioner’s contention that the Respondent      acted unreasonably and without relevant evidence if well-founded and I   find that the decision of the Respondent was unreasonable and the      Respondent was not afforded with a fair process of adjudication hence         leading to major   issues not being raised.

[43]    Thirdly, on the issue of abuse of power. The Petitioner avers that the        Respondent’s decision was an abuse of power in that it exercised its power for an unauthorised purpose disregarding relevant considerations          and taking into account irrelevant considerations.

[44]    Did the Respondent act in excess of jurisdiction? Is the basic question to be answered at this juncture. I do not find the need to expatiate too      much on this point but suffice to refer back to the analysis of the first         ground of contention of the Petitioner on the “illegality of the decision”.

[45]    It is abundantly clear from the records that the Respondent acted in         flagrant disregard to the relevant provisions of section 91 (1) (a) to (d) of       the Insurance Act hence rendering its decision in itself illegal and    unreasonable and further in taking into account irrelevant    considerations and not abiding to the basic principle of the right to be      heard rule further complicates the use of its powers leading it if not to      total   absurdity but to   an obvious abuse of exercise of its power as a whole.

[46]    Hence, since the discretion of the FSA was to be only specific and guided by the ‘mandatory provisions’ of the provisos to section 91 (1) (a) to (d) of   the Insurance Act and which discretion was used in excess of jurisdiction       as permitted under the Insurance Act, I find that the decision of the FSA       was clearly unreasonable and ultra vires the cited section of the law and       in fact, the rationale of the Insurance Act relevant to compensation payment as I see it in this matter, hence leading to procedural    impropriety.

[47]    In view of all the above, I hold that the decision of the FSA is unreasonable and ultra vires section 91 (1) (a) to (d) of the Insurance Act as read with section 88 (1) (b) of the same Act and further than in        arriving at its decision, the FSA breached the rules of natural justice           particularly, that of, ‘Audi alterum partum’.

[48]    For the reasons stated herein before, I hold that the decision of the   Respondent dated the 13^th day of January 2014 in this matter, is illegal         and ultra vires. I therefore grant the writs of certiorari and mandamus as          prayed for accordingly in that the impugned decision of the Respondent      is hereby quashed and a writ of mandamus is hereby issued, compelling the Respondent to pay compensation to the Petitioner as he is entitled to under the Insurance Act and as claimed in his letter of claim dated the      28^th May 2013. Further, costs of the suit is awarded in favour of the          Petitioner.

Govinden J

Judge of the Supreme Court