AFRICAN REINSURANCE CORP. V. FANTAYE

• Pages: 884-913

884

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NIGERIAN SUPREME COURT CASES

[1986] 2 N.S.C.C.

"The situation is explained by the court to the defendant personally. He is told

that he can proceed with his case and call as many witnesses as he likes".

I agree that the defendant's counsel was not present in court. That is a matter

between him and his counsel. I may here draw attention to the provision of section

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33(6) (c) of the 1979 Constitution:-

"S.33 (6) Every person who is charged with a criminal offence shall be entitled:

(a)

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(b)

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0

(c)

to defend himself in person or

by a legal practitioner of his own

choice".

No such provision has been made in civil cases by the Constitution.

In conclusion, it is for all the reasons given above and for the fuller reasons in

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the lead judgment of my learned brother Uwais, J.S.C., which I now adopt as mine,

that I, too, will allow this appeal, set aside the appeal judgment of the Court of Ap-

peal, and restore the judgment of the learned trial judge, Apara, J. There will be

costs to the appellant which I assess at N300.00.

Appeal allowed.

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AFRICAN REINSURANCE CORP. V. FANTAYE

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AFRICAN REINSURANCE CORP.

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APPELLANT

V

ABATE FANTAYE

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RESPONDENT

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SUIT NO. SC 1/1986

SUPREME COURT OF NIGERIA

ESO,

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J.S.C.

UWAIS,

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J.S.C.

COKER,

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J.S.C.

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KAR I BI-WHYTE,

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J.S.C.

KAWU,

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J.S.C.

20th June, 1986

Practice and Procedure - Immunity from suit and legal process - International

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Organisation - Issue whether entitled to immunity - Conclusiveness of certificate

of Minister of External Affairs - Waiver of immunity - Exclusion of common

law rule of implied waiver by existence of statutory provisions - Need for

express submission to jurisdiction

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Commercial Law - Master and Servant - Claim against defendant for wrongful

termination of appointment - Defendant entering conditional appearance then

later appearing in opposition to motion for interim injunction and also obtaining

leave to file and serve defence - Subsequent application by defendant to set

aside writ on ground of immunity dismissed in absence of express submission

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to jurisdiction by board of directors.

ISSUES:

1.

AFRICAN REINSURANCE CORP. V. FANTAYE

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885

Whether the waiver of diplomatic immunity under Title 48 of the Diplomatic

Immunities and Privileges (African Reinsurance Corporation) Order 1985 must

be expressly stated.

2.

Whether the submission to the jurisdiction of a Court for the purpose of entering

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a conditional appearance, amounts to a waiver of immunity.

3.

Who has the power to waive immunities and privileges vested in an international

corporation?

FACTS:

The respondent as plaintiff, brought an action in the High Court of Lagos State,

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against the African Reinsurance Corporation, claiming damages for wrongful ter-

mination of appointment. The defendants/appellants entered a conditional appear-

ance, and the respondent brought an application for an order to restrain the

appellants from ejecting him until judgment and from depriving him of his Diplo-

matic Lizer Identity Card and Visa. The order was granted. After subsequent

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amendment of the statement of claim, the appellants applied to set aside the writ

of summons for lack of jurisdiction, and this was struck out for the non-appear-

ance of the appellant's counsel. Respondent filed an application for judgment in

default of defence, and the appellants filed another application to set aside the writ

of summons for lack of jurisdiction. The learned trial judge held that though the

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defendant corporation enjoyed diplomatic immunity, it could waive such and in

fact did waive such by tendering Exhibit AR1 which contains the corporations ar-

ticles.

The appellants aggrieved by this appealed to the Court of Appeal. By a split

decision of the Court of Appeal, the appellant's appeal was dismissed. The Court

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of Appeal, holding that the appellants had submitted to the jurisdiction to the High

Court, and had thus waived their immunity, and also by the provision of Article 48

of the agreement establishing the corporation. They also contended that the con-

tract of employment was not even covered by the immunity. The appellants thus

appealed to the Supreme Court.

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HELD:

1.

The appellants are a corporation subscribed to by foreign sovereign nations

of the Organisation of African Unity, and enjoy diplomatic immunity. Waiver is

not to be presumed against a sovereign or an organization that enjoys immunity.

There is a presumption that there is no waiver until the evidence was to the

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contrary. Thus, any express waiver is possible in the case of the appellants.

Article 48 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 it's Headquarters

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" does not waive

immunity. Since there has been no express waiver of immunity and the

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appellants only entered a conditional appearance, the appellants have not in

any way waived their immunity, and the High Court has no jurisdiction over the

appellants.

2.

Submission to the jurisdiction of a court for the purpose of entering a conditional

appearance, does not amount to a waiver of diplomatic immunity. The person

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in whose favour privilege or immunity is presumed must be shown to have

waived it knowing fully what he or it is doing. An application to set aside a writ

of summons on the ground of immunity can 'not' amount to a waiver of such

immunity.

3.

The immunities, exemptions and privileges granted in the interest of a

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corporation may be waived by the Board of Directors, to such extent and upon

such conditions as it may determine the immunities, exemptions and privileges,

in cases where its action would in its opinion further to interests of the

corporation. Thus whenever an international corporation intends to waive its