African Reinsurance Corporation V. Abate Fantaye (1986)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
For a proper appreciation of the issues involved in this appeal, I would like to state the facts, as they are relevant to those issues.
The Plaintiff, Abate Fantaye, who is the Respondent in this appeal, and who hereinafter, in this judgment, would be referred to as the Respondent, took a writ in the High Court of Lagos State against the African Reinsurance Corporation who would be referred to as the Appellants hereinafter in this judgment, claiming for wrongful termination of his appointment. He claimed special damages as follows:
Claim in U.S. Dollars
(a) (i) Basic Salary at U.S.
$2532.08 x 22 months U.S. $55,705.83
(ii) C.O.L. at 32% basic salary 17,825.87
(iii) Family Allowance $50 x 22 months 1,100.00
(iv) Education grant for 1 daughter $600 x 2yrs 1,200.00
$75,831.70
(b) Accumulated Terminal Benefits
At the rate of one month’s salary for
every year of service or part thereof
based on the last month’s salary from
1st October, 1977 to 31st December
1985 i.e. U.S. $3342.35 x 8 ‘bd $27,574.35
Cost of Living Allowance (COLA)
1980 US $27,623 at 15.10% 4,171.07
1981 US $28,314 at 15.10% 4,275.41
1982 US $29,004 at 15.10% 4,379.60
Total $116,272.13
2 Claims in Naira
i. Ticket for-daughter at N608 for 1984 608.00
ii. 3 One-way tickets at 304 each 912.00
iii. Excess baggage allowance of 20kg.
each for 3 i.e. 60kgs. at N5 per kg. 300.00
iv. Baggage allowance for personal
effect 1000 kgs. at N1.45 per kg. 3,226.00
N5,056.00
This writ was taken out on 15th February, 1984 in the High Court Registry. On 24th February, the Appellants entered a conditional appearance under Order 8 Rule 1. Lagos State (Civil Procedure) Rules. The appearance was made on a memorandum of appearance Form No. 11, Appendix A. However, on 27th February, 1984, the case was listed before Ayorinde J., and the respondent brought an application under Order 39 Rule 12 and Order 40 Rule 1 of the Rules aforesaid, praying for an order that the Appellants, their agents or servants be restrained by injunction until judgment was given, from –
“(a) ejecting the plaintiff/applicant from Flat 48 Crescent A 1004 Block of Flats, Victoria Island, Lagos.
(b) from depriving the plaintiff/applicant, its use of (I) African Re-Diplomatic Lizer Passer No. 00053 which has been renewed and validated till 31/12/85
(2) Identity Card No. A000048 of 15/12/80
(3) Visa 6641 dated 11/4/83 and for such further orders.”
Mr. Ibenume, of counsel, representing the Respondent – Fantaye argued the motion, while the record states Mr. Ajumogobia as representing the Appellants.
On that day, though the Appellants had earlier entered a conditional appearance, Mr. Ajumogobia said nothing of the jurisdiction of the Court, but proceeded to reply to the motion. The learned trial Judge granted the order sought by the Respondent after hearing both learned counsel.
On 3rd April, 1984, a motion, dated 26th March, seeking an amendment to the statement of claim and also asking for judgment, was brought before the Court. Upon the Appellants not opposing Respondent’s withdrawal of the prayer for judgment the Court granted leave to the Respondent to file an amended statement of claim and the Appellants to file an amended statement of defence, if need be, within fourteen days. The next hearing was on 16th April, when an application, dated 3rd April, by the Appellants, to set aside the writ of summons for lack of jurisdiction, was struck out for non-appearance of learned counsel for the appellants.
Then, on 7th May, the Court had before it, two applications, one by the Respondent for judgment in default of defence and the other by the appellants (filed on 19th April after the court had struck it out on 16th April) for setting aside the writ on the ground of lack of jurisdiction. This was the first time that the challenge of jurisdiction came fully into the open. The application was –
“(a) to set aside the writ of summons and all other processes filed herein on the ground that the Defendant/Applicant is an International Organization and as such, enjoys immunity from legal suits and process
(b) to dismiss the action against the Defendant/Applicant on the ground that the finding of Immunity on the part of the Defendant substantially dispose the whole action ”
Now, this application is very important. And, it is the origin of this appeal. The learned trial Judge found that the Appellants were an International Organisation recognised by the Federal Republic of Nigeria. He went on –
“It enjoys immunities privileges and exemption.”
And, then, he added-
“It has power to waive or curtail its own immunities. It can waive them permanently or as occasion arises.”
On whether the Appellants actually waived their immunity or not, the learned trial Judge was of the view that –
“It is easy to follow Article 48(1) that the Defendant Corporation may be sued in a Court of competent jurisdiction where it established a Headquarter. It is not disputed that the headquarter of the Defendant is within the jurisdiction of this court and notwithstanding any law or convention, the Defendant has agreed to be sued within Lagos State. From its Exh. “ARI” Article 48(1) this Court has jurisdiction. By making of Exh. AR1, which contained Articles 47 and 48 the Defendant, has waived the rights or privileges exemption or immunities now claimed. Section 15 of the Diplomatic Immunity Act 1962 allowed for a waiver of immunities. Chapter IX of EX. AR1 is the best example of such waiver”.
It seems to me that the judgment was based on waiver of its immunity by the Appellants being party to Articles 47 and 48 of Exhibit” AR1″, or to put it fuller, contained in Chapter IX of the Exhibit.
Before setting out what happened in the Court of Appeal, for the Appellants appealed against this decision, it is, 1 think, necessary to set out the Articles aforesaid. The exhibit mentioned, “AR I”, is a composite document containing –
(a) “Agreement Establishing The African Reinsurance Corporation (Africa Re)”
(b) “Headquarters Agreement” and
(c) “Supplementary Headquarters Agreement.”
The first Agreement, that is the one establishing the African Reinsurance Corporation (African Re) is an agreement establishing the Appellant Corporation, which agreement was executed on 24th February, 1976, between the African States that were members of the Organisation of African Unity on the one part and the African Development Bank on the other. It is this agreement that contains Chapter IX, and indeed Article 46 to 53 (including the Articles 47 and 48) relied upon by the learned trial Judge in his judgment. Chapter IX deals with “Status, Immunities, Exemptions and Privileges” and the whole chapter is best set out in this judgment. It reads –
“Status, Immunities, Exemptions and Privileges
Article 46: Status, Immunities, Exemptions and Privileges
To enable the Corporation effectively fulfil its purpose and carry out the functions entrusted to it, the Status, immunities, exemptions and privileges set forth in this Chapter shall be accorded to the Corporation in the territory of each State member; and each State member shall inform the Corporation of the specific action which it has taken for such purpose.
Article 47: Status in Member Countries
The Corporation shall possess full juridical personality and, in particular, full capacity:
(i) to contract;
(ii) to acquire, and dispose of, immovable and movable property; and
(iii) to sue.
Article 48: Legal Process
- Legal actions may be brought against the Corporation in a court of competent jurisdiction in the territory of a country in which the Corporation has its Headquarters, or has appointed an agent for the purpose of accepting service or notice or process, or has otherwise agreed to be sued.
- Disputes arising from reinsurance contracts entered into by the Corporation shall be subject to conventional practices or to ordinary legal processes applicable to comparable business as shall be agreed in the respective contracts. In all cases, the Corporation and its property and assets wherever located and by whomsoever held, shall be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Corporation.
Article 49: Immunity of Assets
Property and assets of the Corporation wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation or any other form of taking or foreclosure by the authorities of any member.
Article 50: Immunity of Archives
The archives of the Corporation and in general, all documents belonging to it or held by it, shall be immune from seizure wherever located in member States except in cases of disputes arising from reinsurance contracts.
Article 51: Freedom of Assets from Restriction
To the extent necessary to carry out the purpose and functions of the Corporation and subject to the provisions of this Agreement, each member State shall undertake to waive and to refrain from imposing any administrative, practical and financial restrictions that would hinder in any manner the smooth functioning of the activities of the Corporation.
Article 52: Privilege for Communications
Official communications of the corporation shall be accorded by each member State the same treatment it accords to the official communications of other international financial institutions of which it is a member.
Article 53: Waiver of the Corporation
The immunities, exemptions and privileges provided in this Chapter are granted in the interest of the Corporation. The Board of Directors may waive, to such extent and upon such conditions as it may determine, the immunities, exemptions and privileges provided in this Chapter in cases where its action would in its opinion further the interests of the Corporation.”
One important exhibit referred to in the ruling of the learned trial Judge is “Exh. AR5”. I will like to reproduce it here –
“The Ministry of External Affairs of the Federal Republic of Nigeria presents its compliments to the African Reinsurance Corporation and has the honour to acknowledge the receipt of the latter’s Note ARC/20 of 12th April, 1984 and to state that while the Ministry will not like to be involved in any legal action, it wishes to state
(i) That the Federal Military Government ratified the Agreement establishing the African Reinsurance Corporation on 8th June, 1976.
(ii) That the Corporation enjoys the status of an International Organisation as specified in the Nigeria Privileges & Immunities Act 1962.
The Ministry of External Affairs of the Federal Republic of Nigeria avails itself of this opportunity to renew to the African Reinsurance Corporation the assurance of its highest consideration. Lagos, 13th April, 1984”
This exhibit was sequent to a letter dated 12th April, 1984 written after the commencement of this litigation and the filing of the motion by the Appellants to set aside the writ of summons and all other processes which were filed by the Respondent, and to dismiss the action on the ground of immunity.
In his ruling, the learned trial Judge regarded the most important point emerging as whether or not the Appellants were an International Organisation. Having stated the proposition that not all international organizations are automatically entitled to immunities, exemptions and privileges, as they must be distinguished from foreign states, he held –
“In case of the Defendant/Applicant (sic the Appellants) I hold it is an International Organisation Recognised by the Federal Republic of Nigeria. It enjoys immunities, privileges and exemption. ”
(italics mine)
And having so held, that the Appellants enjoyed immunities privileges and exemptions, he went on to “waiver” and he said –
“it has power to waive or curtail its own immunities. It can waive them permanently or as when occasion arises.”
He further held that the letter from the Ministry (reproduced above) does not help the Appellants and it was the Headquarter Agreement that was the pertinent one. He also referred to S.15 of the Diplomatic Immunities and Privileges Act, 1962 No. 42 which provides –
“Any Organisation or person may waive any immunity, inviolability or privileges conferred on it or him under this Part of this Act.”
and said –
“I must turn to the Headquarter Agreement Exh. AR1’. It is by this document that the Defendant/Applicant (sic the Appellants) by its own free will agreed to waive certain immunities including the right to be sued, Section 15 of the Act provides for this”
thus making the provisions of the agreement self executing as opposed to enabling.
And what is this act of waiver by the Appellants as contained in the Articles that the learned trial Judge found so compelling Let us follow the reasoning of the Judge. He said –
“It is easy to follow Article 48(1) that the Defendant Corporation (the Appellants) may be sued in a court of competent jurisdiction where it established an headquarter. It is not disputed that the Headquarter of the Defendant is within the jurisdiction of this Court and notwithstanding any law or convention; the Defendant has agreed to be sued within Lagos State. From its EXh. ‘AR1’ Article 48(1) this Court has jurisdiction. By making of Exh. ‘AR1’ which contained Articles 47 and 48 the defendant has waived the rights or privileges exemption or immunities now claimed. Section 15 of the Diplomatic Immunity Act 1962 allowed for a waiver of immunities. Chapter IX of Ex. ‘ARI’ is the best example of such waiver…
The Agreement and precisely its Article 48(1) makes it possible to sue the Defendant in its Headquarter”.
I have spent a considerable time on the findings of the learned trial Judge to exhibit that the pivot upon which he based his decision is Article 48 of the Agreement Establishing the African Reinsurance Corporation. It is also to show the importance that must be attached to the interpretation to be placed on that agreement, particularly Chapter IX thereof and in special particular, its article 48.
In the Court of Appeal, to which the Appellant appealed following the decision of the trial Judge, there was split decision. The majority of the Court, Uthman Mohammed (reading the lead judgment) and Legbo Kutigi, J.J.C.A. dismissed the appeal while Nnaemeka-Agu J.C.A. (dissenting from the majority) allowed the appeal.
It would be interesting to set here the respective reasonings of the Court. The lead majority judgment, no doubt, identified the problem correctly when the learned Justice of the Court of Appeal stated –
“The issue however upon which the learned trial Judge dismissed the objection of the Appellant is not whether the appellant was immune from’ being sued but on the waiver of the said immunity”. The learned Justice then spelt out the case of the Respondent that the immunity has been waived first by the Appellants’ submission to the jurisdiction of the Lagos High Court, and secondly, by the provisions of Article 48 of the Agreement establishing the Corporation.
As regards the first, Uthman Mohammed, J.C.A. said-
“The Appellant knew its rights and privileges at any given time and it was sued directly. It was not a subordinate of any authority and had the power to waive its immunity if it wanted to. The statement of claim filed by the respondent before the court referred to the Agreement establishing the corporation and mentioned in Paragraph 18 issues of privileges, immunities and exemptions. It is therefore without any doubt that the Appellant was not ignorant of its rights and privileges. Yet it appeared without protest before the learned trial Judge and opposed a motion for an interim injunction. It also opted and was granted leave to file statement of defence, within fourteen days from the date of the application. This to my mind amounts to submission to the jurisdiction of the trial court. See John Grisby v. Jubwe and 2 Ors.)”
And in regard to the second issue, specified by the learned Justice of the Court of Appeal, that is Article 48 of the Agreement Exh. ‘AR1’, Uthman Mohammed J.C.A. said-
“In considering this aspect of the Appeal I have referred to S.15 of the Diplomatic Immunities and Privileges Act 1962, which provides that:
“any organisation or person may waive any immunity, inviolability or privileges conferred on it or him under this Part of this Act.
“I have made a finding earlier in this judgment, that the Diplomatic and Privileges (African Reinsurance) Order 1985, made by the Minister of External Affairs on this 16th January 1985 is relevant to the first decision of this appeal”
(One should pause here. and note that this order was not before the trial Court, but was brought into the case at the Court of Appeal stage).
The Justice of the Court of Appeal went on after setting out Articles 46 to 53 of the Agreement Ex. ‘A R 1’ –
“It is without doubt that Article 53 stands as a proviso to the provisions of the remaining articles in the chapter. The framers of the Agreement were conscious of the immunity the Corporation enjoys in the member States of the Organisation. The agreement is specific as to the waiver of the immunity from suit where it says that legal action may be brought against the Corporation in a Court of competent jurisdiction in the territory of a country in which the Corporation has its Headquarters.”
He agreed with the Respondents submission that Articles 49, 50 and 51 provided express immunity against interference with the Appellants properties and assets, archives, movements of its funds and his right of communication but that this immunity was in the event of success of litigation against the appellant and as the learned Justice termed it, “by virtue of Article 48”.
The learned Justice then made some legal pronouncements. He said –
“It is my respectful view that the framers of that Agreement did not intend to protect the Appellants from being sued once its main object was to undertake mercantile transactions … Corporations or other establishments dealing with commercial transactions are not normally accorded privileges and immunities from being sued.”
After referring to the case of Baccus v. Scicio National del Trigo (1956) 3 ALL E.R. 715. He ended –
“I see no justification in making the appellant immune from civil litigation once its stock in trade is mercantile transaction”
Kutigi, JCA. concurred with the judgment, but the learned Justice of the Court of Appeal would rather believe that the issue of waiver really never arose in this case. It was one of the Appellants, by the agreement they had entered into, not covered by immunity.
Nnaemeka-Agu, J.C.A. however dissented from this judgment. He dealt with the first issue raised by the Appellants that is – Whether the Certificate of the Ministry of External Affairs is conclusive as to the status of the appellant as an International Organisation as specified in the Nigerian Privileges and Immunities Act 1962″ as follows –
“I must observe that as the learned Judge had in his ruling found that the appellants were an international organisation enjoying diplomatic immunity and there is no cross-appeal against such a finding issue number one should not strictly have arisen…He then referred to Section 18 of the Diplomatic Immunities and Privileges Act 1962 No. 42 which provides –
“If in any proceedings any question arises whether or not any organization or any person is entitled to immunity from suit and legal process under any provision of this Act, a certificate issued by the Minister stating any fact relevant to that quarter shall be conclusive evidence of that fact,”
and argued that the certificate issued by the Ministry of Justice that the appellants enjoy the status of an International Organisation is conclusive on that issue. This was the certificate which the learned trial Judge held to have no legal basis and in respect of which Uthman Mohammed J.CA, had to consider the Diplomatic Immunities and Privileges (African Reinsurance Corporation) Order 1985 before deciding that the Federal Military government had recognised the Appellant as an International Organisation and has also conferred upon it all immunities, privileges and exemptions usually accorded to such organisations.
As regards waiver, upon which the majority judgment and the trial Court anchored their decisions, Nnaemeka-Agu, J.CA, treated, in some detail, the rule on waiver both under the common law and statute. He maintained that the immunity of the Appellants derived from statute and not common law, relying on the Act of 1962. Waiver, under statutes, must be express, maintained the learned Justice. He then examined the Diplomatic Immunity Act (1962) No. 42 and Statutory Instrument No.3 of 1985 and held that the result was that the Appellants shall have, inter alia, immunity from suits and legal process, excepting suits arising from reinsurance contracts, that the waiver of such immunity must be express. In regard to Article 48 of the Agreement establishing the Corporation (already copied above), Nnaemeka-Agu, J.C.A. took the view that it had nothing to do with waiver. He said it was merely an enabling provision as to the rights of the Corporation and not executory in the sense that the provision eo ipso amounted to a waiver. He agreed that Article 53 would have been unnecessary if Article 48 was meant to carry implication of waiver. and in any event, a whole-sale submission of the Corporation to the jurisdiction of the Courts in its headquarter country in all cases, would run counter to the accepted principles of waiver in international law. He allowed the appeal.
The Appellant have therefore taken the matter to this Court and based their grounds of appeal on the following points –
(a) there was no express waiver;
(b) the certificate of the Ministry of External Affairs was relevant to the issue before them;
(c) Article 48 of Chapter IX of the Agreement, referred to in the body of the judgment, should not be construed as a general waiver and certainly not as executory provision;
(d) the Court of Appeal did not appreciate the relevance of the Diplomatic Immunities and Privileges (African Reinsurance Corporation) Order 1985 S.I. No.3.
Briefs were filed, and for the Appellants, Mr. F.C. Ozomah of counsel based his contention on two pillars –
(a) Immunity from legal process and
(b) Waiver of Immunity.
In regard to the former, that is, immunity from legal process, counsel argued in his brief that by S.18 of the Diplomatic Immunities and Privileges Act 1962, a certificate issued by the Minister stating any fact relating to that question shall be conclusive evidence of that fact. Learned Counsel went on “Just as the appellant derives its corporate status and indeed its capacity as a body corporate from its constitution as ratified by the Federal Government of Nigeria we take the position that the Minister’s Order where it exists only limits the immunities which naturally derive from the appellant’s status as an International Organisation”
and that the privilege as enjoyed by all International Organisations in Nigeria unless expressly restricted or withdrawn. The immunities and privileges enumerated in Chapter IX, counsel argued, are not exclusive of the contents of the Act but supplementary thereto.
As regards waiver, learned counsel referred to Articles 48 and 53 of the Agreement establishing the appellant and argued that Article 48 described the available forum for suits and actions as to which waiver has been made, in specific cases, by the Board of Directors of the Corporation pursuant to Article 53.
He then dealt with specific waiver and argued that the only implied waiver known to customary international law and convention was the waiver in respect of any counter claim which stems from the initiation of proceedings. He referred to Article 32(M) of the Vienna Convention on Diplomatic Relation in regard thereto, and submitted –
“The rule of customary international law and convention has given rise to the creation of the evidentiary burden to be discharged by a person contesting the plea of immunity (as an extension of the general rule of evidence that he who asserts must prove) is the rule that a waiver of immunity must be strictly proved.”
He ended by saying that any purported waiver, not in accordance with the provisions of Article 53, is of no effect as it is only the Board of Directors of the Appellant Corporation who were empowered to waive the immunities, privileges or exemptions enjoyed by the Appellant.
For his part, J. A. Cole of counsel, contended in a brief filed on behalf of the Respondent that the Agreement establishing the Respondent Corporation contemplates its categorisation as an organisation entitled to certain immunities as envisaged by the provisions under Chapter IX. It is within the competence of the Respondent to limit the immunities and privileges as it has been done by Article 48 and the right of such limitation has statutory propriety by virtue of Section 15 of the Diplomatic Immunities and Privileges Act 1962.
Counsel submitted that the Court of Appeal was right in not considering Appellants entry of conditional appearance as waiver of its immunity from litigation and in regard to the dissenting judgment of Nnaemeka-Agu, J.C.A., it was the view of the Respondent Counsel that these judgments failed to draw a distinction between immunity conferred by the Ministry on an individual and on an organisation respectively in criminal and civil suits. Nor, counsel continued, did the dissenting judgment take cognisance of Section 5(2) and 7(2) of the Act of 1962.
He then urged that the certificate of the Ministry of External Affairs was irrelevant in so far as it did not deprive the Appellants of the right to waive their diplomatic immunity, nor does the Statutory Instrument No.3 of 1985 an amendment of Chapter IX of the Agreement, already referred to, nor of Section 15 of the Act of 1962.
Counsel referred to Articles 48 and 53 of the Agreement and urged that Article 53 is not to be interpreted as a lid on Article 48. In so far as the conditional appearance is concerned, this would not save the Appellants from the incidents of waiver arising from the later steps they took in asking for time to file their statement of defence.
In their oral argument, both learned counsel in effect adopted the arguments in their briefs respectively.
Now, what is the law on jurisdictional immunity so far as it affects international organisation This question is pertinent having regard to the approach of Kutigi, J.C.A. to the problem arising in this appeal. For the learned Justice of the Court of Appeal took the view, contrary to the views of Uthman Mohammed J.C.A. that the Diplomatic Immunities and Privileges (African Reinsurance Corporation) Order 1985 (S.I No.3 of 1985) dated 16th January 1985 and though made under the enabling provision of the Diplomatic Immunities and Privileges Act (No.2) No.42, came rather too late to be taken advantage of by the Appellants in this case. Also that Article 48 of the Agreement (Ex. ARI) makes it possible to sue the Appellants in this country (being their headquarters).
We have to start from the common law of England. Diplomatic immunities were first accorded to Public Ministers by the usages of nations. It is these usages of nations that are known as International Law. The recognition given to these privileges has been threefold. Firstly, by writers of great authority and in particular See 4 Co. Inst. 152,. 1B1. Com 253, 470Com, Div tit Ambassador; secondly, through judicial pronouncements, see the old cases of Triquet v. Bath (1764), 3 Burr 1478, where Lord Mansfield, uphold- Bing Blackstone’s (who later became famous for his commentaries) said the privilege of foreign Ministers and their domestic servants depends upon the law of nations, Novello v. Toogood (1823) 1 B & C 554 and Parkinson v. Potter (1885) 16 QBD 152.
But the most interesting is the third recognition, that is, Statute, the interest being the origin of this recognition. For instance, as early as 1708, the Diplomatic Privileges Act, 1708, (7 Ann c 12) was passed. The statute conferred complete immunity upon Ministers from all suits and processes. But it is the origin of the statute that made it interesting for it came as a result of the Ambassador of the Tsar, Peter the Great being arrested in England for a most trifling debt. Of course, this became embarrassing to the English Royal Court and the Act was subsequently passed (See for a full account Martens, Causes Celebre 1.47).
Lord Mansfield, on the Act of Queen Anne, said in Triquat v. Bath (supra) that it was merely declaratory of the common law, (Phillimore, International Law, ii, 228 and 1 BI. Com. 254) and where the Statute did not apply, the common law did. See Service v. Castaneda (1845) 2 Coli 56 where the court held that Statute was not meant as an abridgement of the common law.
And it is in pursuance of the principle of Omnis coactio abesse a legato debet, that a public Minister does not owe even temporary allegiance to the sovereign to whom he is accredited.
Of course, this immunity could be waived even at common law. Though by 1737, (see Barbuits case (1737) Cas. tem Talb. 281) it was thought that a public Minister could not, by any act of his own, waive privilege, which is attached to his office in the interest of the Sovereign, whom he represents,by 1854, in Taylor v. Best (1854) 4 C.B. 487 it has been held that by appearing and pleading otherwise than to the jurisdiction, the immunity could be waived. Earlier on, in Brazil (Emperor) v. Robinson 18386 Ad v. E1801, it has been held by Lord Denman C.J., in a judgment, concurred with by Lord – Enenborough, Littledale, Patterson and Colebridge l., made a rule absolute J as to security for costs to be given by a foreign Prince in an action instituted by him.
Now, all these were common law. In Nigeria, in John Grisby v. Jubwe 14 WACA 637, the plaintiffs claimed for’a31227:19:10 as special damages and ‘a3500 as general damages, occasioned by the unlawful interference by the defendant with a contract of labour between the plaintiffs and Elder Dempster Lines Ltd. The Plaintiffs filed a statement of claim, and ten days later, the defendant filed what he headed a Statement of Defence, whereby he claimed to be exempted from the jurisdiction of the courts on the ground of diplomatic immunity. He did not answer in that statement, the allegations of fact contained in the plaintiffs statement of claim. The Court held that the defendant had submitted to the jurisdiction of the court and that the defence filed was valueless. On appeal to the West African Court of Appeal. Coussey J.A. delivering the judgment of the Court with which de Commamond Ag. C.J. and Foster-Sutton P. concurred, held’97
“As to the first ground of appeal that the court erred in holding that there was a submission to the jurisdiction of the Court, it is unnecessary to decide the point whether as Liberian Consul, the defendant was exempted from the jurisdiction as he had clearly attended the Court both on a motion and on a return date, he had thereby submitted to the jurisdiction by opposing the plaintiffs motion and accepting an order for pleadings.”
One must pause here, for the Court of Appeal relied in the instant appeal on this case for the determination of the Appeal against the Appellant. The Court, as per Uthman Mohammed J.C.A., had said in his own judgment.”
“When the issue of submission to the jurisdiction raised by the respondent in this case is considered it would show that all the steps taken by John Grisby in the case … had been taken by the appellant here”
But as Nnaemeka-Agu, J.C.A. pointed out in his dissent, the John Grisby case was determined on the principles laid down by the common law, for presently, I will refer to the Diplomatic Immunities and Privileges Act 1962 No. 42 which is the first statute on Diplomatic Immunities in this country. Its being the first legislation in this country in respect thereto is however understandable when one realises that this country became independent, that is became a nation sui juris only in 1960, and the Statute – Diplomatic Privileges Act 1708 (7 Ann C 12) not being a statute of general application, could not be made and certainly not necessarily applicable to colonies and Nigeria was a colony!
It was when this country became a nation, and could partake as an equal, in the usages of nations, that the Statute, 1962 No.42 was passed. After all, stricto sensu the persons who could partake of a diplomatic character before the more modern advent of International Organisations like the United Nations, the Organisation of African Unity etc; had always been:-
(a) Public Ministers:-
By the operation of the treaties of Vienna made in 1815 (and for this, see Hemlet Map of Europe by Treaty 1. 62; State Papers ii, 179, of Aix-la-Chappele) (ibid State Papers v. 1090). Public Ministers are in categories –
(i) Ambassadors legales or nuncios;
(ii) envoys, ministers or other persons accredited to the Sovereign;
(iii) ministers resident;
(iv) Charge d’affaires accredited not to the Sovereign, but to the Minister for foreign affairs.
(b) The family, suite and servants of public ministers, to whom some degree of privilege attaches in the interest of whose family, suite or establishment they are members.
(c) Persons of a quasi – diplomatic character for example, consuls and consular officers.
The so-called public ministers, their families and persons of quasi-diplomatic character are anachronistic in a dependency.
And so, in my view, it is the cases based on the English statutes, from 1702 et seq., on Diplomatic Immunities, that would be relevant and the Nigerian case of Grisby v. Jubwe could only be relevant in so far as the Diplomatic Immunities and Privilege 1962 No.42 could be held as merely declaratory of the common law. But I cannot so hold, for though in Barbuits case (1737) Cas tem Talb 281, Hopkins v. De Robech (1789) 3 Term Rep 79, Triquet v. Bath (1764) 3 Burr 1478, Viveast v. Becker (1814) 3M & S 284, Novello v. Toogood (1823) 1B & C554, the English Courts held that the Statute of Anne (supra) was merely declaratory of the common law, time has changed since Anne, and the world has become far more complicated than to leave International Law that simplistic. As the Nigerian Statute – the Diplomatic Immunities and Privileges Act 1962 No.42 reveals in its contents, there are now immunities attachable to organisations declared by the Minister of External Affairs to be an organisation, the members of which are sovereign powers (whether foreign powers or Commonwealth countries or the Government or Governments thereof) (see Section 11); Section 12 makes reference (though it is not material to the determination of this appeal) to International Court of Justice.
For these reasons, I find it difficult to appreciate the reasoning of learned Justice of the Court of Appeal, (Uthman Mohammed, J.C.A.), when he based his finding mainly on the case of John Grisby (supra), and thereby rejected the authorities of Re Republic of Boliva Exploration Syndicate Ltd. (1914) 1 Ch. 139 and the more recent authority of Baccus v. Servicio Nacional Del Trigo (1956) 3 ALL ER. 715, where Jenkins L.J., agreeing with the majority, a case in which Simpleton L.J. dissented, extended immunity to a department of a sovereign state. Though, as the learned Lord Justice held, each case must depend on its peculiar facts it was his view and I agree, that –
“once it is found on the evidence, that the party sued is in truth a department of a sovereign state, albeit itself a corporate body, then the suit becomes, or it becomes apparent that the suit in truth is, one between the plaintiff and the foreign sovereign state, or the part of the foreign sovereign state represented by the departmental body concerned.”
This leads to the peculiar fact of the instant appeal and the peculiar legislative material to its determination. Part II of the Diplomatic Immunities and Privileges Act 1962 No.42, which is captioned “Immunities and Privileges and International Organisations and Persons connected therewith has the following provisions in its section 11 –
“11. – (1) This section shall apply to any organisation declared by the Minister by Order to be an organisation the members of which are sovereign Powers (whether foreign sovereign Powers or Commonwealth countries) or the Government or Governments thereof.
(2) The Minister may from time to time by Order in the Gazette –
(a) provide that any organization to which this section applies (hereinafter referred to as “the organisation”) shall, to such extent as may be specified in the Order, have the immunities, and privileges set out in the First Schedule to this Act, and shall also have the legal capacities of a body corporate:
(b) confer upon –
(i) any persons who are representatives (whether of Governments or not) on any organ of the organisation or at any conference convened by the organisation or of any organ thereof;
(ii) such officers or classes of officers of the organisation as are specified in the Order, being the holders of such high offices, in the organisation as are so specified;
(iii) such persons employed on missions on behalf of the organization as are specified in the Order, –
to such extent as are specified in the Order, the immunities and privileges specified in the Second Schedule to this Act:
(c) confer upon such other classes of officers and servants of the organization as specified in the Order, the immunities and privileges specified in the Third Schedule to this Act to such extent as are so specified, –
and the Fourth Schedule to this Act shall have effect for the purpose of extending to the staff of such representatives and members as are mentioned in sub-paragraph (i) of paragraph (b) of this subsection and to the families of officers of the organisation any immunities and privileges conferred on the representatives, members, or officers under that paragraph, except in so far as the operation of the said Fourth Schedule is excluded by the Order conferring the immunities and privileges.
(3) Nothing in this section shall authorise the making of any Order to confer immunity or privilege upon any person as the representative of the Government of Nigeria or as a member of the staff of such a representative.
(4) For the avoidance of doubt, the Notices and Orders in Council in the Fifth Schedule to this Act made or issued under the authority of any Act repealed by this Act shall, with all necessary modifications, be deemed to have been made by the Minister as Orders under this section; and such Notices and Orders in Council shall have effect accordingly but may at any time be amended, revoked or replaced by the Minister.”
The immunities under the First Schedule include immunity from suit and legal process (see paragraph 1 of the First Schedule to the Act) and by Exhibit AR5 there is no doubt that the Federal Government had conferred upon the appellants the status of a recognised International Organisation. Uthman Mohammed J.C.A. had no doubt in his mind about this. He said and rightly too-
“It is therefore without any doubt that the Federal Military Government has recognised the appellant as an International Organisation and it also has conferred on it all immunities, privileges and exemptions usually accorded to such organisations.”
Kutigi, J.C.A. arrived at the same conclusion though he would not agree with the effect of Exhibit AR5 as stated supra. He said, However, that by virtue of the Diplomatic Immunities and Privileges (African Reinsurance Corporation) Order 1985 (S.1 No.3 of 1985) dated 16th January, 1985, and made under Section 11 of the Diplomatic Immunities and Privileges Act 1962 No. 42, immunity from suit and legal process had been conferred upon the appellant. The dissent of Nnaemeka-Agu J.CA, completed the trinity on this point. The learned Justice of the Court of Appeal took the view that Ex. AR5 had legal basis for its existence and referring to S.18 of the Act which provides –
“18. If in any proceedings any question arises whether or not any organization or any person is entitled to immunity from suit and legal process under any provision of this Act or any regulations made under this Act, a certificate issued by the Minister stating any fact relevant to that question shall be conclusive evidence of that fact.”
he concluded that the certificate is conclusive of what it says.
I am in no doubt that the Appellant Organisation enjoys diplomatic immunity, and by virtue of Exhibit AR5 and Sections 11 and 18 of the Act of 1962, has immunity from suit and legal process. Of course, in common law, Diplomacy extended, for a long time, only, and after some time, principally, to foreign sovereign and their representatives. International Law has, by reason of what Schwarzenberger rightly said, been –
“to present international law in the mid-twentieth century without paying full attention to the emergence of international institutions would be to draw a lopsided picture”
for, towards the end of the nineteenth century, international organizations had started to emerge, and fifty years later, there have been, as a result of treaties, which form the normal basis for the existence of international organisations, conciliatory, judicial, governmental, administrative, coordinative and legislative organisations. Of the governmental bodies is the Organisation of African Unity, the members of which are signatories to the Agreement Establishing the African Re-insurance Corporation, the principal agent in this appeal. The Headquarters Agreement was made between the Federal Military Government of Nigeria and the African Reinsurance Corporation; so also was the supplementary Headquarters Agreement. The Instrument of Ratification of the Agreement was signed by the Head of the Federal Military Government of Nigeria and so Ex. AR5 signed by the Ministry of External Affairs of this country is understandable.
That being the case, and having established the undoubted right of the appellant to “immunity from suit and legal process”, what is left is whether that immunity has been waived. Indeed, this is the crux of this appeal.
The trial Court held there was a waiver. The Court of Appeal (by a majority) held there was a waiver. Uthman Mohammed J.CA. took a look at Articles 46 to 53 of the Agreement, examined some English and American authorities and held –
“It is my respectful view that the framers of that Agreement did not intend to protect the Appellant from being sued once its main object was to undertake mercantile transactions.”
He then went on, and with respect, curiously-
“Article 46 of the Agreement directed the member states to deal with the Corporation and grant it the status. immunities, exemptions and privileges as set out in the remaining articles of Chapter IX. Thus, it would be wrong for any member state which is a signatory to that Agreement to fail to recognise the legal status of the Corporation. Corporations or other establishments dealing in commercial transactions are not normally accorded privileges and immunities from being sued …I see no justification in making the appellant immune from civil litigation once its stock in trade is mercantile transaction …”
It was Kutigi, J.C.A.’s stand that Article 48 “makes it possible to sue the appellant in its Headquarters.” He concluded –
“Article 48(1) is clear and unambiguous. In the light of all that I have said. I would have thought that the issue of waiver of the immunity has not arisen in the case”. But even if there is such an immunity at all I would agree with my brother Mohammed J.C.A. that the Appellant has waived it in the circumstances of the case as a whole.”
Nnaemeka-Agu. J.C.A. on this all important topic adverted to Sections 15 of the Act of 1962 which provides –
“Ay organisation may waive any immunity inviolability or privileges conferred on it or him under this part of the Act”
and after referring to authorities, held that only express waiver is possible in the case of the Appellants. He considered Articles 46 to 53 of the Headquarters Agreement as considered by Uthman Mohammed. J .C.A. and held that Article 48 has nothing to do with waiver. It is, he said an enabling provision.
He reasoned –
“I do not see that the parties to the agreement intended to impose general waiver on the corporation….. the principle of wholesale submission of the Corporation to the jurisdiction of the courts in its headquarters country in all cases…will run counter to the accepted principles of waiver of international law , that is the question of waiver arising in individual cases and at the time when the person or organisation which has immunity is required to elect whether or not he or it would submit to jurisdiction.”
With respect to the majority judgment of the Court of Appeal, the pronouncement of Nnaemeka-Agu J .C.A. represents the state of the law. It is true that, as the Court of Appeal of the State of New York said in Allen & Co. v. Bank Gospodarstwa Krajowego (National Economic Bank) 2 NYS 2nd 201. a corporation organised by either a domestic or a foreign government, for commercial objects in which the government is interested, does not share the sovereign’s immunity from suit, but each case must depend on its own facts. In Baccus v. Sevecio Nacional Del Trigo (1956) 3 ALL ER 715 Jenkins LJ. “Whatever the position might be in the case of an ordinary trading company or … in which a foreign state …. required shares it seems… impossible to hold that a body is disqualified from ranking as a department of state where it is an incorporate body… for whom the foreign state is responsible .’.
The appellants are a Corporation subscribed to by foreign sovereign nations of the Organisation for African Unity. This rule of International law is a mere recapitulation of a country not allowing a foreign sovereign to be impleaded directly or its property put in jeopardy by a suit in rem.
And so be it. To my mind Articles 46-53 of the Agreement must be looked into to see if there is a waiver. Waiver is not to be presumed against a sovereign or an organisation that enjoys immunity. If anything, the presumption is that there is no waiver until the evidence shows to the contrary. And that evidence must show positively to the contrary. For, I share the same view as the decision in Re Republic of Boliva Exploration Syndicate Ltd. (1914) 1 Ch. 139 that “diplomatic privilege can be waived if at all only with full knowledge of the party’s right.” A fortiori, the person in whose favour privilege of immunity is presumed, must be shown to have waived it knowing fully what he or it is doing. See also Baccus v. Servicio National Del Trigo (supra) as per Jenkins, L.J. at p.734 and also as per Parker L.J. at p.737.
What are the contents of these Articles 46-53. They have already been set out. Article 48 to my mind which provides that “legal actions may be brought against the Corporation in a court of competent jurisdiction in the territory of a country in which the Corporation has its Headquarters ….. ” waives no immunity. Otherwise, as Nnaemeka, J.C.A. rightly queried, what is the essence of Article 53 For it is this article that deals with waiver. It says in positive terms –
“The immunities, exemptions and privileges provided in this Chapter are granted in the interests of the Corporation.”
Then to waive the immunities exemptions and privileges it provides that ”
The Board of Directors may waive”
then, but even, then only
“to such extent and upon such conditions as it may determine, the immunities, exemptions and privileges”
But has there been such waiver in this case The answer is a positive “No”. Indeed, the Appellants entered only a conditional appearance. They filed an application to set aside the writ on the ground of immunity in favour of the Appellants. Nothing has been shown or could be shown that the Directors intended to waive the immunity attaching to them.
I have no doubt in my mind therefore that the immunity from suit enjoyed by the Appellants has not in the least been waived or even attempted to be waived. The High Court has no jurisdiction over the Appellants.
The appeal must therefore succeed and it succeeds. The Appeal is allowed. The judgment and order of the High Court is set aside so also the majority decision of the Court of Appeal. The suit shall be struck out as against the Appellants as the Court has no jurisdiction in the matter. The Appellants shall be entitled to the costs in the High Court assessed at N200.00, the Court of Appeal assessed at N200.00 and in this Court assessed at N300.00.
UWAIS, J.S.C.: I entirely agree with the judgment read by my learned brother Eso, J.S.C., the draft of which I had a preview.
The facts of this case are not in dispute and they have been admirably narrated in the aforesaid judgment. What is, however, in dispute is whether the appellant, as defendant in the High Court, had waived its diplomatic immunity. The learned trial Judge (Ayorinde, J.) held that it did. In the Court of Appeal Mohammed and Kutigi J.J.C.A, agreed with the learned trial Judge but Nnaemeka-Agu J .C.A. expressed a contrary opinion by dissenting.
Now the basic rule at common law as regards the jurisdiction of English Courts over sovereigns or sovereign states was that a foreign sovereign or sovereign foreign state was immune from the jurisdiction of the courts; although the courts would take jurisdiction if the sovereign submitted to their jurisdiction. It follows, therefore, that sovereign or diplomatic immunity can be waived – see Dickinson v. Del Solar, (1930) 1 K.B. 376 at p.380 and Sultan of lahore v. Abubakar Tunku Aris Bendahar, (1952) A.C.318. This has been the position also in this country following the decision of the West African Court of Appeal in 1954 in John Grisby v. Jubwe & Ors. 14 WACA 637.
The principle of immunity has been a feature of all systems of law but its application had been far from uniform. This led to its codification in 1961 by the Vienna Convention on Diplomatic Intercourse and Immunities. In England, the codification was given expression in the diplomatic Privileges Act, 1964. In this country the law which governs the subject is the Diplomatic Immunities and Privileges Act, 1962.
By section 11 subsection (2) (a) of the 1962 Act, the Minister of External Affairs may by Order in the Gazette –
“provided that any organisation (that is international organisation) to which this section applies (hereinafter referred to as “the organisation”) shall, to such extent as may be specified in the order have the immunities, and privileges set out in the First Schedule to this Act, and shall also have the Legal capacities of a body corporate.”
The first paragraph of the aforementioned First Schedule to the Act reads – “Immunity from suit and legal process.” This immunity has been conferred on the appellant by the Diplomatic Immunities and Privileges (African Re-insurance Corporation) Order, 1985 which was made by the Minister and published in the Gazette as Statutory Instrument No.3 of 1985.
It is to be noted that at the time the High Court made the ruling that the appellant had waived its immunity, that is on the 30th August, 1984, there was no such Order. The ruling was based on the interpretation of Chapter IX of exhibit AR 1 which is the Agreement (between African States of the Organisation of African Unity) Establishing the African Re-insurance Corporation. However by the time the Court of Appeal came to hear the case and gave its judgment on the 9th December, 1985, the Order had been made by the Minister. Nnaemeka-Agu and Mohammed J.J.C.A. rightly in my view, took cognisance of the Order in coming to the conclusion that the appellant was vested with diplomatic immunity. The learned justices respectively relied on Ghosh v. D’Rozario, (1962) 2 All E.R. 640 and Order 3 rule 2(1) of the Court of Appeal Rules, 1981; Quilter v. Mapleson (1882) 9 QBD 672 at p.678; Meade v. Haringey Council, (1979) 1 WLR 637 and University of Lagos v. Olaniyan, (1985) 1 NWLR 156.
By the provisions of section 15 of the 1962 Act-
“Any organisation or person may waive any immunity, inviolability or privileges conferred on it or him under this part of this Act.”
The question that is now to be answered is: when does a waiver of immunity take place or when can it be said that there is a submission to jurisdiction by a defendant who enjoys diplomatic immunity At common law it is as held by the West African Court of Appeal in Grisby’s case (supra) – that is when appearance has been entered by or on behalf of the defendant to oppose a motion in the suit or when an order for pleadings has been accepted by the defendant. Similar decisions will be found in the English cases of In re Suarez, (1918) 1 Ch.176 at 193, Sultan of lahore’s case (supra) and Dickinson’s case (supra). However the position in England was far from clear because contrary views had been expressed in The Jassy, (1906) P.270, In re Republic of Bolivia Exploration Syndicate, (1914) 1 Ch. 139, Baccus S.R.L. v. Servicio Nacional Del Trigo, (1957) 1 Q.B. 438 and R. v. Madan, (1961) 2 Q.B.1. In Madan’s case, Lord Parker, CJ observed as follows-
“Certain things are, we think, clear. In the first place, it is not for someone who is entitled to diplomatic immunity to claim it in the courts. It is unnecessary to refer to the authorities, but we think it is clear that proceedings brought against somebody, certainly civil proceedings brought against somebody, entitled to diplomatic immunity, are, in fact, proceedings without jurisdiction and null and void, unless and until there is a valid waiver which, as it were, would bring the proceedings, to life and give jurisdiction to the court. Moreover, it is clear that the waiver must be a waiver by a person with full knowledge of his rights, and a waiver by or on behalf of the chief representative of the State in question. In other words, it is not the person entitled to a privilege who may waive it, unless, of course, he does so as agent for or on behalf of the representative of the country concerned; it must be the waiver of the representative of the State.”
Furthermore even where there is submission to jurisdiction, the submission could be withdrawn. This is clear from the majority decision in Baccus S.R.L’s Case (supra) which the headnote of the Report summarised as follows –
“(2) That there could be no submission to the jurisdiction unless it were made by a person with knowledge of the right to be waived and with the authority of the foreign sovereign and therefore, because the acts of the head of the defendants in instructing Solicitors to enter appearance and ask for security for costs had been done in ignorance of his rights and without the knowledge or authority of his superiors, they did not constitute a submission to the jurisdiction.”
Happily these conflicting decisions had been settled by the English Diplomatic Privileges Act, 1964 which, though retaining the authority of a sending state to waive immunity, enacted that a waiver by the head of the embassy shall be deemed to be a waiver by that state – see section 2 subsection (3) thereof. The Act also provides in Article 32 (2) of Schedule 1 that a waiver must always be express. I am to observe, with respect, that the decision in R. v. Madan which was given in 1961 predated the enactment of the 1964 Act and therefore that decision could not have been based on the provisions of the Act as Nnaemeka-Agu, J.C.A. seems to hold.
Be that as it may, in this country, the common law position as laid down in Grisby’s case has not changed. Our enactment on waiver under the 1962 Act has not similar provisions to those in Article 32(2) of the 1st Schedule to the English Act of 1964. However the facts in Grisby’s case are distinguishable from those of the present case. In the former case it was said that the defendant “had clearly attended the Court, both on a motion and on return date”. Could the same be said of the appellant in the case in hand
Before I attempt to answer the question it is necessary to point out that exhibit AR 1 is basically a treaty between African countries which are members of the Organisation of African Unity, including Nigeria. The treaty is binding on Nigeria by virtue of its having been ratified by the Federal Republic of Nigeria on 8th June, 1976. The 1964 draft Article of the International Law Commission defines a treaty as –
“any international agreement in written form, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (treaty, convention, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, modus vivendi, or any other appellation) concluded between two or more States or other subject of international law and governed by international law.”
By Section 12 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1979 (as modified)-
“No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the Federal Military Government.” There is no evidence that exhibit AR 1 or any of its counterparts has been enacted into law nor am I able to establish that from my research. Since the treaty is basically an agreement between African States, I do not see how the respondent can seek to argue that article 48 which in part states –
“Article 48: Legal Process
Legal actions may be brought against the Corporation in a court of competent jurisdiction in the territory of a country in which the Corporation has its Headquarters, or has appointed as agent for the purpose of accepting service or notice or process, or has otherwise agreed to be sued. ”
operates in his favour. The rule under the municipal law is that only parties to a contract can seek to enforce its terms and not a third party who is a stranger and therefore not privy to it. The respondent is certainly not a party to exhibit ARI. Moreover treaties do not constitute part of the law of the land merely by virtue of their conclusion by a country – see Parlement Beige (1879) 4 P.D. 129.
In view of the foregoing I think the lower courts were in error and misconstrued the essence of exhibit AR I when they assumed that its provisions affected the relationship between the parties in this case.
Now for the purpose of determining whether the appellant had waived its immunity, the lower court were entitled to examine Article 53 of Chapter IX of exhibit AR I, since the exhibit was before them. The Article reads”
Article 53: Waiver of the Corporation
The immunities, exception and privileges provided in this Chapter are granted in the interest of the Corporation. The Board of Directors may waive, to such extent and upon such conditions as it may determine the immunities, exceptions and privileges provided in this Chapter in cases where its action would in its opinion further the interest of the Corporation.”
The immunities and privileges enumerated in this Chapter are similar to those conferred on the appellant by the 1962 Act. It is therefore proper to hold that whenever the appellant intends to waive its immunity under the 1962 Act, it would have to obtain the approval of its Board of Directors. There is no evidence that it had done so in this case. In fact, the appearance which it entered in the case was done conditionally. It cannot therefore be said, with certainty, that the appellant had waived the immunity conferred on it – R. v. Madan (supra). In addition, it could be safely inferred that the provisions of Section 2(2) of the Diplomatic Immunities and Privileges (African Reinsurance Corporation) Order, 1985 require that there must be express waiver by the appellant before it could be shown that the appellant has submitted to jurisdiction. The subsection, though badly drafted by the draftsman, reads –
“Except in so far as in any particular case the Corporation expressly waives its immunity, immunity from suit and legal process; but (sic) no waiver of immunity shall extend to any measure of execution arising out of any action to which subsection 3 of this section relates,”
In conclusion, I therefore agree that the appeal should be allowed. Both the decisions of the High Court and the Court of Appeal should be set-aside. The suit in the High Court is hereby struck-out for lack of jurisdiction in that Court. I endorse the order as to costs in the lower courts and this Court.
COKER, J.S.C.: I agree that the appeal succeeds for reasons which my learned brother Eso, J.S.C. has ably set out in the lead judgment, the draft of which I have had the advantage of reading in advance.
The facts and the issues have been clearly and elaborately stated in his judgment. It has never been disputed that the Appellant enjoyed the status of an international Corporation with immunities, privileges and exceptions as provided by its Agreements, by international conventions, and the Statutory Law of this country. Exhibit ‘ARI’ is a composite document containing the three relevant papers, namely agreement establishing
(a) The African Reinsurance Corporation (African Re),
(b) Headquarters Agreement and
(c) Supplementary Headquarters Agreement.
The main issue in this appeal is whether the appellant waived its right to immunity from these proceedings. The learned trial judge was of the view that by virtue of Articles 47 and 48(1) of its Agreement (i.e. its Charter) the appellant had waived its right to sue and be sued. The majority members of the Court below, for a different reason upheld the decision. They held the waiver arose from certain steps it had taken in that court. I disagree. I agree with my learned brother Eso, J.S.C. that Articles 47 and 48(1) only enabled the Corporation to contract and to sue (ArtA7) and to be sued (ArtA8). The status, immunities, exceptions and privileges conferred in Article 46 could only be waived as provided in Article 53.
Articles 53 provides that the Board of Directors may waive to such extent and upon such conditions as it may determine the immunities, privileges and exceptions in Chapter IX in the interest of the Appellant corporation: Section 15, Diplomatic Immunities and Privileges Act 1962, empowers any organisation or person entitled to such privileges and immunities to waive same. The law is clear that the right to the immunities or privileges may be claimed at any time and, in the case of legal processes, at any stage of the proceedings. It is clear also waiver of right of any immunity must be express and clear and cannot be implied or inferred by conduct of the person or organisation. The decision of the court below on the issue of waiver appears to have been based on the decision of the West Africa Court of Appeal in John Grisby v. Jubuwe & 2 Ors. (1954) 14 W.A.C.A. 637. The decision was based, it seems to me, on the principle of estoppel by conduct. The defendant, it was held, had submitted to the jurisdiction of the court by not appearing under protest having filed a defence to statement of claim. Unlike in this case, the defendant entered a conditional appearance. Article 53 specifically provides that only the Board of Directors has the right to waive the immunities, exceptions, and privileges provided under Chapter IX, where in its opinion, in furtherance of the interest of the Corporation. It appears to me that who ever claims that the Corporation has waived its right to immunity ought to plead and prove it. I think a resolution of its Board to submit to jurisdiction of the court, in the absence of admission of the fact, ought to be alleged and proved. There was no such evidence before the Court.
Since the power to waive can only be exercised as provided in Article 53 and not by any other body or person except the Board of Directors, the principle in Grisby case supra, would therefore not apply to the facts of this case.
In the final result, I entirely agree with the opinion expressed by Eso, J.S.C. and adopt them in allowing this appeal and hereby adopt the orders which he made.
SC.1/1986
