Alhaji Kehinde Asafa Oluwalogbon & Ors V. The Government of United Kingdom & Anor (2005)

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D. MUHAMMAD, J.C.A.

On 27th June, 2001, an accident occurred at about 4.30 a.m. along Iba Road Akesan in Alimosho Local Government Area of Lagos State. The accident involved 1st respondent’s landrover defender Jeep with registration No. 138 CD 60 and 1st appellant’s Nissan Urban bus. 2nd respondent was the driver of 1st respondent’s Landrover defender Jeep at the time of the accident.The appellants herein, as plaintiffs at the Lagos State High Court, commenced action jointly against the respondents as defendants by a writ dated 24th January, 2002, claiming severally for the damages they suffered following 2nd respondent’s negligence that resulted in the accident.

Parties would be referred to from now on as appellants and respondents.Pursuant to Order 9 rule 11 of the High Court (Civil Procedure) Rules, 1994, respondents challenged the jurisdiction of the trial court to try appellants’ suit inter alia on the following grounds:

(1) The 1st defendant is a foreign State whilst the 2nd defendant is a member of its diplomatic mission in Nigeria.

(2) Under principles of Customary International Law, applicable in Nigeria, a foreign sovereign state cannot be sued in the courts of another sovereign state in any legal proceedings either against its persons or for the recovery of specific property or damages.

(3) The defendants have not submitted to the jurisdiction of the court.

(4) At the time of the matters complained of the 2nd defendant was and still is a foreign national and a member of the diplomatic staff of the British Deputy High Commission accredited to the Government of the Federal Republic of Nigeria; and

(5) In the premises, the defendants enjoy absolute immunity from suits and legal processes and are entitled to immunity from the suit and legal processes issued by the plaintiffs against the defendants.

Respondents’ summons challenging the trial court’s jurisdiction was supported by a six paragraph affidavit. Appellants filed a six paragraph counter-affidavit in opposition to respondents’ summons. Arguments were heard from counsel on both sides and the trial court in a considered ruling dated 3rd May, 2002, in sustaining respondents objection to its jurisdiction and striking out 1st defendant/appellant’s name from the suit held thus:

”This now brings us to the question of what is the present situation in Nigeria as regards the immunity of sovereign state? Is there any difference between immunity accorded to its institution, organs or departments etc. The learned Counsel for the plaintiff in this case had contended that sovereign immunity is different from diplomatic immunity, which he claimed is meant only for the foreign envoys and consular officers. The learned Counsel for the 1st defendant on the other hand had submitted that there is no difference between sovereign and immunity accorded to state and its institutions.

I am of the view that a careful perusal of the provision of section 1(1) of the Diplomatic Immunities and Privileges Act, No. 42 of 1962, Cap. 99, Laws of the Federation, 1990, will provide the necessary answer.

Section 1(1) of the Act provides:

“1(1) Subject to the provisions of this Act every foreign envoy and every foreign consular officer, the members of the families of those persons, the members of their official or domestic staff, and the members of the families of their official staff, shall be accorded immunity from suit and legal process and inviolability of residence and official archives to the extent to which they were respectively so entitled under the law in force in Nigeria immediately before the coming into operation of this Act.”

By section 22(1) of the same Act foreign envoy is defined as an envoy of a foreign sovereign power who is accredited to the government of Nigeria. A careful perusal of both provisions shows that the foreign envoys act on behalf of the foreign sovereign state and therefore any act performed by either the foreign envoy as a whole or an official is deemed performed by the sovereign power which he represents. Hence, the protection granted under section (1) of the Diplomatic Immunities and Privileges Act. It is my considered view that the idea behind this section is to recognise and implement the privileges accorded a foreign Country through its staff and officials.