In The Court of Appeal
(Lagos Judicial Division)
On Friday, the 22nd day of July, 2005
Suit No: CA/L/358/2003
Before Their Lordships
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ISA AYO SALAMI |
....... Justice, Court of Appeal |
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MUSA DATTIJO MUHAMMAD |
....... Justice, Court of Appeal |
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CLARA BATA OGUNBIYI |
....... Justice, Court of Appeal |
Between
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1. ALHAJI KEIDNDE ASAFA OLUWALOGBON |
Appellants |
And
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1. THE GOVERNMENT OF UNITED KINGDOM |
Respondents |
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RATIO DECIDENDI |
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WORDS AND PHRASES - ''DIPLOMATIC IMMUNITY'': Meaning of "Diplomatic immunity'' |
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''..this court per Akpata, JCA as he then was, had held in Kramer Italo Ltd. v. Government of the Kingdom of Belgium and Another (2004) 12 CLRN 93 at 103 specifically thus: "Diplomatic immunity is not the same thing as sovereign immunity. The 1962 Act protects every foreign envoy, consular officers; members of their families, and members of their official or domestic staff from suit and legal process. Such protection however can be waived. By S. 11 of the 1962 Act of Immunities and Privileges extended to any organisation declared by the Minister of External Affairs to be an organization the membership of which are sovereign powers." Per MUHAMMAD, J.C.A. (Pp. 23-24, paras. G-C) |
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APPEAL - ERROR IN A TRIAL COURT'S DECISION: Whether an error in a trial court's decision would automatically lead to the reversal of the decision by the appellate court |
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''..it is not every error in a trial court's decision that would lead to the reversal of the decision by the appellate court. Only errors that caused the appellants injustice count. In the instant case such errors have not been established against the lower court's ruling by the appellants. The ruling though predicated on wrong reasons does manifest the correct conclusion. The ruling must endure. See: Agu v. Nnadi (2002) 18 NWLR (Pt. 798) 103 SC and Dalfam (Nig.) Ltd. v. Okaku Int'l. Ltd. (2001) 15 NWLR (Pt. 735) 203 CA.'' Per MUHAMMAD, J.C.A. (P. 29, paras. A-C) |
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INTERPRETATION OF STATUTE - RULE OF INTERPRETATION OF STATUTE: The proper construction of the law where specific things or persons are not mentioned |
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''The principle is well settled that in construction of statutory provisions, where specific things or persons are mentioned, the intention is that those not mentioned are not intended to be included. See: Buhari v. Yusufu (2003) 14 NWLR (Pt.841) 481; 10 MJSC 87 at 111; Ogboyiya v. Obi Okudo (1979) 6-9 SC 32 and Udo v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139. Besides, since the interpretation placed on the statute would inevitably deprive appellants their right to seek redress, the narrow and strict interpretation rather than the lavish one employed by the court was necessary See: Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt. 71) 10 and Tyonzughul v. AG. Benue State (2005) 5 NWLR (Pt. 918) 226 at 248.'' Per MUHAMMAD, J.C.A. (P. 23, paras. D-G) |
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INTERPRETATION OF STATUTE - RULE OF INTERPRETATION OF STATUTE:Whether enactments must always be interpreted as they are rather |
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''In the performance of their duties some Judges, with very good reasons, prefer limiting themselves to their traditional and abundantly defined role. Enactments must always be interpreted as they are rather as they ought to be. Where the intention of the lawgiver is manifest from the clear and unambiguous words of the statute being interpreted, the court must without further ado give effect to that intention as conveyed through the words employed. Indeed, the task of interpretation hardly arises in that situation for by the very words employed by the lawmaker his intention comes through effortlessly. See: Mobil Oil (Nig.) Ltd. v. FBIR (1977) 3 SC 53 and Osawaru v. Ezeiruka (1978) 6 and 7 SC 135. True, the statute should be wholistically considered any time a part or a section of it is being interpreted in order to avoid inconsistency or repugnancy See: Awuse v. Odili (2005) 8 NWLR (Pt.876) 481; (2005) All FWLR (Pt. 253) 720 at 732 and Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; (1983) 6 SC 158.'' Per MUHAMMAD, J.C.A. (P. 22, paras. A-E) |
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INTERNATIONAL LAW - SOVEREIGN IMMUNITY: Persons whom the protection of the doctrine of sovereign immunity avails |
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''..under the doctrine of sovereign immunity, the protection avails not only the State but to the Head of State while in office personally, and to the government of the state or its component part or any of their departments. See Duke of Brunswick v. King of Hanover (1844) 6 BEAV 1; Wadsworth v. Queen of Spain (1851) 17 QB 171; Duff Development Co. Ltd. v. Kelattan Government (1924) AC 797 and Rahimtoola v. Nizam of Hyderabad (supra).'' Per MUHAMMAD, J.C.A. (P. 20, paras. C-E) |
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CASE LAW - STARE DECISIS: What the principle of stare decisis entails |
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''By the rule of stare decisis the apex court's decision only binds courts where the legislation interpreted therein is in pari material with the one being instantly construed. See Emordi v. Kwentoh (1996) 2 NWLR (Pt. 433) 656 SC; Oladele v. Aromolaran II (1996) 6 NWLR (Pt. 453) 180 SC and Camptel Intl SPA v. Bexson Ltd. (1996) 7 NWLR (Pt. 459) 170.'' Per MUHAMMAD, J.C.A. (P. 25, paras. D-F) |
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INTERNATIONAL LAW - STATE IMMUNITY: Whether an independent sovereign state can be sued in the courts without its consent |
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''In common law jurisdiction, an independent sovereign state may not be sued in the courts against its will and without its consent. This doctrine of state or sovereign immunity evolved from rules of international law and same has been internalised and made part of the common law of England. Under the common law, exercise of court's jurisdictions against the sovereign state is deemed incompatible with the superior authority of the sovereign state. The doctrine is founded upon the broad considerations of public policy, International law and comity rather than on any technical rules of law. See Compania Nariera Vascongado v. S. S. Cristina (1938) 1 All ER 719 Per Lord Atkin at 720; United States of America and Republic of France v. Dollfus Mieg et cie SA and Bank of England (1952) AC 582 per Lord at 613.'' Per MUHAMMAD, J.C.A. (Pp. 19-20, paras. G-C) |
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M. D. MUHAMMAD, J.C.A. (Delivering the Leading Judgment): 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.
Also in the case of:
African Reinsurance Corporation v. Fantaye (supra)
It was held that there is no difference in principle between the sovereignty and immunities accorded a State and those of institutions...
I therefore hold that under the Diplomatic and Immunities Privileges Act, 1962, the 1st defendant as a sovereign state is accorded immunity from suit and legal process and that this court cannot by its processes compel the 1st defendant and make it a party against its will in the instant case.
I further hold that under and by virtue of section 1(2) of the same Diplomatic and immunity Act, Cap. 99 Laws of the Federation, 1990 the writ of summons and other processes served on the 1st defendant are void.
I hold that this court lacks the necessary jurisdiction to entertain the suit brought against the 1st defendant. The 1st defendant is accordingly struck out from this suit."
Being dissatisfied with the decision of the court, the appellants have appealed to this court on an amended notice of appeal containing four grounds. A single issue has been distilled by the appellants from their four grounds for the determination of the appeal. It reads:
"Whether a foreign state has absolute immunity from suit in Nigeria."
The respondents appear to have adopted the foregoing issue as same has been reproduced in their brief as being relevant in the determination of the appeal.
At the hearing of the appeal, parties adopted and relied on their briefs which included appellants' reply brief. Oral arguments in amplification of the arguments proffered in parties' briefs were also held.
In arguing the sole issue for the determination of the appeal, learned appellants' Counsel contended that section 1(1) and section 22(1) construed by the lower court and indeed the totality of the Diplomatic Immunities and Privileges Act relate only to persons or individuals recognized by government of Nigeria as foreign envoys or foreign consular officers. The provision of the Act, learned Counsel submitted, did not grant immunity to the sovereign state that appointed the foreign envoy or foreign consular officer to represent it. Learned Counsel drew distinction between sovereign and diplomatic immunity and argued that the immunity created under the Diplomatic Immunities and Privileges Act, Cap. 99 of 1990, Laws of the Federation is restricted to those persons specifically mentioned. The immunity does not extend to the state and same would not avail a state unlike what was held by the lower court. The British High Commissioner for example, being a foreign envoy within the context of section 1(1) of the Diplomatic Immunities and Privileges Act 1962, would be immune from actions and legal processes but not so the state that appointed him. The lower court's failure to distinguish between diplomatic immunity and state or sovereign immunity was fatal. Counsel urged that the court's decision for that reason should be interfered with.
Learned appellants' counsel further argued that the lower court's heavy reliance on the Supreme Court's decision in African Re-insurance Corporation v. Fantaye (1986) 3 NWLR (Pt. 32) 833 was legally wrong. Whereas the African Re-insurance Corporation in the Fantaye's case drew its immunity from the provision of section 11 of The Diplomatic Immunities and Privileges Act, the state, which the first appellant in the instant case is, does not enjoy similar status as the corporation. But for the lower court's enor of equating 1st respondent with the corporation, the court's decision would again have been different from what it is.
Appellant counsel contended further that since no local legislation has provided presently for the immunity of the State, the common law in England prior to the enactment of the State Immunity Act 1978 must be resorted to. The law is to be found in Lord Dennings dictum in Trendlex Trading Corporation v. Central Bank of Nigeria (1977) 1 All ER 881 at 889. The said decision further endorsed the doctrine of restrictive immunity as enunciated in the privy Council decision in owners of Philippine Admiral (owners) v. Walleon Shipping (Hong Kong) Ltd. (1976) 1 All E.R. 78. Learned counsel submitted that by the English Court of Appeal's decision in I. Congress del Partido (1981) 1 All E.R. 1092, the doctrine of restrictive immunity applies, even in actions in personam which the instant matter happens to be. The English Court of Appeal decision was finally affirmed by the House of Lords in the I Congress del partido's case cited as (1981) 2 All E.R. 1064 per Lord Wilberforce at 1069-1070. Counsel contended that it is this position of the law that is applicable. The lower court under the principle laid in that case is empowered with the necessary jurisdiction to entertain appellants' case against the first respondent. In this regard counsel specifically relied on the dicta of Lord Wilberforce at page 1074 and that of Lord Bridge of Harwich at page 1083 where it is stated that the acts of the state in the realm of private law is subject to scrutiny by the individual who had suffered from its acts. The position, counsel submitted, finds strength in S. 5 of the English State Immunity Act of 1978. Counsel urged that same should be endorsed.
Not surprisingly, learned respondents' counsel has held a different position. He contended that appellants counsel's argument that because the Diplomatic Immunities and Privileges Act had specifically provided for immunity in respect of diplomats and consular officers only, cannot be right. Counsel submitted that the decision of the court reflected at p.29 - p.30 of the record restates correctly the doctrine of sovereign immunity and was in accordance with common sense and the expectations of the international community. Counsel contended that both state and diplomatic immunity are the same and interchangeable as it was one that gave birth to the other. He relied on the case of Rahimtoola v. Nizan of Hyderabad (1958) AC 379 and The Barbuits' case (1737) 25 777, as authorities to the effect that diplomatic immunity is an extension of sovereign immunity. Learned Counsel further argued that the immunity which Diplomats enjoy under section 2(1) of the Diplomatic Immunities and Privileges Act is donated because of the sovereign or state which the officers represent. It is ridiculous if the same State that is the basis of the officers' immunity is impleaded. This plinciple, counsel contended, has also been propounded by J. G. Starke in his book titled 'Introduction to international law'. It is the same principle that has been reflected in the Vienna Convention on Diplomatic Relations of April, 1961.The principle has been codified in the Diplomatic Immunities and Privileges Act and by it the 2nd appellant was absolutely immune as rightly held by the lower court.
Learned respondents' counsel further argued that, contrary to what learned appellant counsel submitted, the lower court was right to have refused to be bound by either the English State Immunity Act 1978 or Judicial pronouncements such as contained in the Trendtex Trading Corp. v. Central Bank of Nigeria (supra) that preceded and apparently led to the enactment of the Act or the Congreso Del Partido's case that issued after the coming into being of the Act. Courts in Nigeria only apply Nigerian statutes and such others which the local laws allow them to apply. Nigerian courts, counsel also contended, cannot apply the common law applicable presently in England. S.32 of the Interpretation Act, Cap. 192, Laws of the Federation, 1990, empowers the courts to apply only pre 1st January, 1900 statutes of general application, common law and doctrine of equity. Counsel buttressed his submission by further relying on the Supreme Court's decision in Okon v. State (1988) 1 NWLR (Pt. 69) 172.
Finally, learned respondent's counsel submitted that this court abides by the supporting opinion of Karibi- Whyte, JSC in the Fantaye's case which rejected the English Court of Appeal's decision in the Trendtex Trading Corp. v. Central Bank of Nigeria case. Learned Counsel urged that the appeal has no merit and same should be dismissed.
On being served with the respondents brief, the appellants filed a reply brief. In the brief and in the oral reply of their counsel at the hearing of the appeal, it was contended that respondents counsel had misrepresented the background facts to this appeal. Counsel urged that arguments be limited squarely to appellants' claim as the suit had not been heard on its merits.
In further reply, it was contended that the source of immunity for the state differs from the one enjoyed by diplomats and others. Diplomats and other persons draw their protection from the Vienna Convention as internalised in local legislations. It was also argued that the lower court was not limited in its power of applying the Common Law of England. He referred to S. 32 of the Interpretation Act and contended that the Supreme Court had construed a similar section in N.T.C. Ltd. v. Agunanne (1995) 5 NWLR (Pt. 397) 541 at 569, and concluded that the limitation date only related to statutes of general application. The courts in this country are free to apply the common law of England as they are presently rather than such laws as at 1st January, 1900. Counsel proceeded to draw a distinction between accepting an English decision as a persuasive authority and interpreting an English decision to determine the common law position. Counsel argued that it is the latter type of decision that we are concerned with instantly. The Trendtex's case, therefore, argued counsel, is not only relevant, but binding in the instant matter. The doctrine of restrictive immunity accordingly applies in Nigeria either as a rule of international law incorporated directly through the present day common law position or as a rule of common law adopted from international law. Counsel submitted that the doctrine of restrictive immunity to sovereign states was not an issue and not decided upon in any form in the Fantaye's case. It cannot therefore be an authority on the doctrine. Counsel finally submitted that the common law position on state immunity before 1981, was an absolute one. To date the restrictive position that changed this absolute position was propounded conclusively by 1981. It has remained the law on the matter up till today. Counsel urged that the law be applied as it presently is. He asked that the appeal be allowed, There is the need to put certain facts, indisputable as they seem to be, in their true perspectives in order to fully appreciate the crucial issue this appeal raises.
The writ issued against the respondents by the appellants was indorsed as follows:
"The plaintiffs claim severally against the defendants jointly and severally the under listed items of damage suffered by them as a result of the negligence of the 2nd defendant in driving the 1st defendant's landrover defender jeep with Registration No. 138 CD 60 on 27th June, 2001, at about 4.30 a.m, along Iba Road, Akesan, Alimoso Local Government of Lagos State.
The 1st plaintiff claims:
i. Loss of earnings at the rate of N3,000 per day from 27/6/01 to date of replacement of his vehicle which is a total write off.
ii. Replacement value of a Nissan urban bus -N1,500,000,00
The 2nd plaintiff claims:
i. Loss of wages from 27/6/01 at the rate of N 1,000
per day till 26th June, 2002 N365,000,00
ii. Medical fees - N159, 950,00
iii. General damages for pain and
suffering N1,000,000.00
N1,524,950.00
The 3rd plaintiff claims:
1. Loss of wages from 27/6/01 to 3rd July,
2001 at the rate of N500 per day -N3,500,00
Medical fees - N8,900,00
General Damages for pain
& suffering N1,000,000.00
N1,012,400.00
The 4th plaintiff claims:
1. Loss of wages from 27/6/01 to 15th
January, 2002, at the rate of N500 per
day for 203 days N101,500.00
ii. Medical fees - N176,000.00
iii. General damages for pain
& suffering- N1,000.000.00
N1.277.500.00."
The same claim as indorsed on the writ, was restated in paragraph 11 of appellants' statement of claim. Unmistakably appellants' claim being for damages arising from the negligent conduct of the 2nd respondent as particularised in paragraph 4 of appellants' pleadings, was grounded in tort. The issue being contended in this appeal is whether or not, a sovereign state should enjoy absolute immunity from proceedings for the recovery of damages in respect of the negligent conduct of its officers who by the provision of the Diplomatic Immunities and Privileges Act Cap. 99 Laws of Federation, 1990, enjoy immunity from legal proceedings in court. Put differently, should the State be held, if at all, vicariously liable for the negligent conduct of its servants which conduct cannot be enquired into by the court?
I understand learned appellants counsel's oral submissions in addition to arguments contained in the appellants' brief as constituting an answer to this germane question in the positive. The respondents' answer which fully support the decision of the lower court is in the negative. The lower court had reasoned in its ruling upholding respondents' preliminary objection to the competence of appellants' action that, given the immunity enjoyed by 1st respondent, the court was without jurisdiction to entertain appellants' claim against him, and that it would be absurd to assume jurisdiction in respect of the same claim against the state that could not be proceeded upon against its very officers. Respondents' counsel, for similar reasons, argued that diplomatic and consular immunity had evolved out of state or sovereign immunity and that the two are conterminous and inseparable.
Learned respondents' counsel is substantially correct that without state or sovereign immunity diplomatic and consular immunity would not have arisen. It is certainly the protection the state enjoys that is extended to such officers and organizations that serve the state in another state which recognises its immunity and agrees that same be extended to its officers and organizations as well.
In common law jurisdiction, an independent sovereign state may not be sued in the courts against its will and without its consent. This doctrine of state or sovereign immunity evolved from rules of international law and same has been internalised and made part of the common law of England. Under the common law, exercise of court's jurisdictions against the sovereign state is deemed incompatible with the superior authority of the sovereign state. The doctrine is founded upon the broad considerations of public policy, International law and comity rather than on any technical rules of law. See Compania Nariera Vascongado v. S. S. Cristina (1938) 1 All ER 719 Per Lord Atkin at 720; United States of America and Republic of France v. Dollfus Mieg et cie SA and Bank of England (1952) AC 582 per Lord at 613. It is instructive to note that under the doctrine of sovereign immunity, the protection avails not only the State but to the Head of State while in office personally, and to the government of the state or its component part or any of their departments. See Duke of Brunswick v. King of Hanover (1844) 6 BEAV 1; Wadsworth v. Queen of Spain (1851) 17 QB 171; Duff Development Co. Ltd. v. Kelattan Government (1924) AC 797 and Rahimtoola v. Nizam of Hyderabad (supra).
It is manifest from some of the foregoing authorities that the doctrine of sovereign immunity is of great antiquity. From its very beginning, the doctrine of sovereign immunity did not provide the absolute rule that a foreign sovereign or state cannot be impleaded in any circumstance. See Duke of Brunswick v. King of Hanover (supra); Lariviere v. Morgan (1872) 7 Ch. 550. In Gladstone v. Musurus Bey (1862) 1 Hem & M 495, an interim injunction was issued against a bank to restrain it from parting with funds deposited by a foreign ambassador on behalf of his government. Again in the Charkieh (1873) 3 BILC 847, an action against a foreign sovereign in respect of private property owned by him in his private capacity in England was entertained by the court. It has remained unclear in what cases the plea of immunity would not be available. See Thai-Europe Tapioca Services Ltd. v. Government of Pakistan (1952) 3 All ER 961 at 964. The decisions in the Tradtex and Fantaye cases only confirm the uncertain boundaries of actions in which the plea would be upheld. What is central in all the decisions where objection on the ground of sovereign immunity had succeeded is the nature of the transaction and the role of the sovereign in the transaction that gave rise to the action. It has become a common feature in those instances that where the state indulges in undertakings that are untoward and irreconcilable with the state's superior authority, the state must comply with the rules in the given undertaken thereby possibly loosing its immunity in the event of any action arising from such undertakings. See: The Charkieh (supra), The Trendtex and Fantayes' cases (supra).
The appellants in the instant case appear to be on a strong wicket when it was submitted that the Diplomatic Immunities and Privileges Act, Cap. 99, Laws of the Federation 1990, pr