CONFLICT 2.4 IMMUNITY
States usually make their top officials immune from proceedings while acting in their capacity. See Tinubu V IMB Securities, Section 308 of the 1999 Constitution.
In the conflict of laws, the concept of “immunity” is quite different as here we are looking at immunity as between sovereign states. The practice of exempting a leader from penalties/suits may instead be regarded as indemnity. See for example Philips V Eyre.
In international law, courtesy demands that a sovereign State is not dragged before the courts of another state. See Professor Olaniyan: jurisdiction of Nigerian Courts in Causes with Foreign Elements. This lies in the reasoning; par in parem non-habet imperium. Which means that an equal cannot exercise authority over another equal… and the notion that the king does no wrong.
This reasoning comes in two folds.
- Absolute immunity.
- Restrictive immunity.
ABSOLUTE IMMUNITY: maintains that a foreign State/government or its agencies and organs can never be sued outside its own territory. This was followed in African Re-Insurance Corporation V Fantaye. Also in Re Christina. In Kuwait Airways Corporation V Iraqi Airways Company, the court held that since the plaintiff was acting under the orders of the government of Kuwait, the plea of immunity could avail it.
RESTRICTIVE IMMUNITY: Accepts absolute immunity PROVIDED the government/State DOES NOT engage in certain acts which can be regarded as “jure gestionis”. Jure gestionis refers to endeavours that can be regarded as done in an individual capacity. Endeavours that are not peculiar to States or governments… endeavours that an ordinary person can also do. It should not act outside its jure imperi (governmental capacity). Article 5 of the UN Convention on Jurisdictional Immunities. Also, the State Immunity Act of UK 1978 provides certain grounds upon which a State may be sued outside it territory… WHERE:
- The suit relates to commercial transactions which the State engaged in-CBN V Trendtex, The Philippine Admiral. Section 3 UK Act. In Cramer Italo V The Government of Belgium the court noted the possibility of accepting restrictive immunity.
- The sovereign voluntarily submits to the jurisdiction of another State-Section 2 Immunity Act UK 1978. This may be by appearing to defend the suit on its merit.
- The suit relates to a contract of employment.
- Tort: In Oluwagbon Motors and another V Government of UK, the court held that the plea of immunity should fail where the foreign State is sued in Nigeria for damages done by her agents to the property of the claimant in Nigeria. Section 5 State Immunity Act UK is instructive on this.
- The suit relates to immovable property: thus the plaintiff should sue in the place where the land is situated notwithstanding that the government of another country has an interest in the suit.
- Where the State acquires patent or intellectual property rights governed by the laws of another State.
- Where there is an arbitration agreement on submission to arbitration outside the State’s territory-African Reinsurance Corporation V JDP Construction Ltd. African Reinsurance Corporation V AIM Consultants.
- Where there is a jurisdiction selection clause-African Re-Insurance Corporation V JDP Construction Limited
- Also in other situations where the sovereign is deemed to have acted in private capacity.
In Kramer Italo V Government of the Kingdom of Belgium, the case was instituted against the embassy of Belgium in Nigeria. The justice held that since the ambassador enjoyed absolute immunity, it can be accorded to his principals.
In Trendtex V CBN, The Nigerian government sought to rescind a building contract and instructed CBN to stop paying the plaintiff. Obeying the government’s order, the CBN refused to pay the contractors. They were dragged to the UK court. The lower court noted that CBN (being an instrument of a Sovereign State (Nigeria)) cannot be sued outside Nigeria. On appeal, Lord Denning noted that the trend has shifted from absolute immunity to restrictive immunity. Therefore, CBN can be sued outside Nigeria where the claim (as in this case) relates to contract.
In Alamieyeseigha V The State, the court noted that the claimant being governor is NOT the head of State of Nigeria… therefore not entitled to immunity. Although this is not right as various other legislations have provided that political sub-divisions within the sovereign State can claim immunity. See Mellenger V New Brunswick Development Corporation, UK State immunity Act.
Other points to note:
The Nigerian Diplomatic Immunities and Privileges Act confers immunity on diplomats and consular officers on the basis of reciprocity. Article 3 of the Vienna Convention on Diplomatic Relations provides that there would be no immunity where the diplomat is neither acting in his official capacity nor acting on behalf of the sending State. Nigeria has also recently ratified the treaty establishing the International Criminal Court which removes immunity from crimes against humanity.