African Reinsurance Corporation v. Fantaye (1986)

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AFRICAN REINSURANCE CORPORATION

V.

        ABATE FANTAYE

COURT OF APPEAL

CA/L/227/84

PHILIP NNAEMEKA-AGU, J.C.A. (Presided Dissented)

UTHMAN MOHAMMED, J.C.A. (Read the Lead Judgment)

IDRIS LEGBO KUTIGI, J.C.A.

MONDAY, 9TH DECEMBER, 1985

      CONFLICT OF LAWS – Jurisdiction – International Organizations – Diplomatic immunities.

CONTRACTS – Agreements – Function of Court.

INTERNATIONAL LAW – Diplomatic Immunities and Privileges – Commercial activities by International Organisations.

INTERNATIONAL LAW – Diplomatic Immunities and privileges – International Organisations and Envoys – Basis of immunities – Diplomatic- Immunities and Privileges Act 1962 considered.

INTERNATIONAL LAW – International Organisations – Diplomatic immunity from legal actions – Waiver of immunity – Voluntary submission to jurisdiction.

PRACTICE AND PROCEDURE – Change in State of Law – Duty of appellate Court.

Issues:

1.
Whether the Appellant enjoyed immunity from legal actions in Nigerian Courts.

2.
If the answer to (1) above is in the affirmative, whether the Appellant has waived its immunity in the present case.

Facts:

The Respondent (then as Plaintiff) had sued the Appellant (then as Defendant) in the High Court of Lagos State of Nigeria, for the wrongful termination of his employment.

On the 24th February 1984, the Defendant entered a conditional appearance. Subsequently the Plaintiff brought a motion for an interim injunction against the Defendant, who opposed the motion, though without

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success. Having been out of time, the Defendant brought an application for extension of time within which to file its Defence. After this, the Defendant then brought an application praying the Court to strike out or dismiss the Plaintiffs claim for want of jurisdiction on the ground that since the Defendant was an International Organisation, it enjoyed diplomatic immunity from suit or legal process, It relied upon a Certificate issued by the Ministry of External Affairs but this was rejected by the trial Judge.

After hearing arguments, the trial Judge ruled that he had jurisdiction to entertain the action, on the ground that the Defendant had waived its diplomatic immunity in the matter.

After the ruling, the Minister of External Affairs issued the Diplomatic Immunity and Privileges (African Re-Insurance Corporation) Order 1985 conferring the status of an International Organisation on the Defendant/Appellant. This Order was sought to be relied upon by the Appellant in the Court of Appeal.

Held (By majority decision):

1.
The African Re-Insurance Corporation assumed the status of an International Organisation (with all the Privileges, immunities and exemptions normally enjoyed by such Organisations), by virtue of the Diplomatic Immunities and Privileges (African Reinsurance Corporation) Order 1985.

2.
Although the Appellant enjoyed Diplomatic immunity from legal process by virtue of the above cited Order, it has the capacity to waive such immunity by voluntarily submitting to the jurisdiction of a Court in which it is sued.

3.
In the instant case, by appearing without protest to contest an application for an interim injunction brought against it by the Respondent, in the Lagos High Court, and also applying for and obtaining leave to file its statement of defence in the substantive case, the appellant, must be taken to have voluntarily submitted to the jurisdiction of the High Court of Lagos State and thereby waived its diplomatic immunity from legal process.

4.
Generally, International Organisations such as the Appellant do not enjoy diplomatic immunity from civil litigation arising from their commercial or mercantile activities.

5.
There is a difference between International Organisations on the one hand and Foreign Envoys and Consular Officers on the other, on the issue of enjoyment of privileges and immunities. While, by the Diplomatic Immunities and Privileges Act 1962 the former enjoyed no privileges or immunities unless and until the Minister of External Affairs says so by an Order published in the Gazette, the latter have their privileges and immunities conferred on them by the Act long before they arrive in Nigeria, and do not require any formal act on the part of the Minister. (per KUTIGI, J.C.A)

6.
By Article 48(1) of the Agreement establishing the Appellant, it is clear that legal actions can be instituted against it in Nigeria, which is the country of its Headquarters.

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7.
It is not the function of a Court of Law either to make agreements for parties or to change their agreements as made.

8.
A combined application of Order 3 Rule 2(1) and Order 3 Rule 23 of the Court of Appeal Rules, 1981, enables the Court of Appeal to give effect to any change in the law by giving a remedy which the Court below could not give because of the state of the law at the time it gave its judgment. (Per MOHAMMED, J.C.A.).

9.
In furtherance to (8) above, although the Diplomatic Immunities and Privileges (African Re-Insurance Corporation) Order 1985 was made after the High court had delivered its ruling, it is relevant and may be acted upon by the Court of Appeal when the matter came up on appeal. (Per MOHAMMED, J.C.A.)

Nigerian Case Referred to in the Judgment:

University of Lagos v. Olaniyan (1985) 1 . 156

Foreign Cases Referred to in the Judgment:

Bacus v. Servicio Nacional Del Trigo (1956) 3 All E.R. 715

In Re Dulles Settlement (1951) Ch. 842 CA

Engelke v. Musmann (1928) A.C. 433

Ghosh v. D’Rozanio (1962) 2 All E.R. 640

Grisby v. Jubwe (1954) 14 WACA 637

Meade v. Haringey Council (1979) 1 WLR 637

Mighell v. Sultan of Julore (1894) 1 Q.B 147

The Parlement Belge 5 P.D. 197

Quilter v. Mapleson (1882) 9 Q.B.D 672

Re Republic of Boliva Exploration Syndicate Ltd (1914) 1 CH. 139

R. v. A.B. (1941) 1 K.B. 454

R. v. Madan (1961) 1 All E.R. 588

Nigerian Statutes Referred to in the Judgment:

Diplomatic Immunities and Privileges Act, 1962, Sections 11, 11(2) (a); 15; 18; Sch. 1

Diplomatic Immunities and Privileges (African Re-Insurance Corporation) Order 1985, Official Gazette No. 5 Vol. 72, of 31st January, 1985

Interpretation Ordinance, Laws of Nigeria, 1958, Section 45.

Foreign Statute Referred to In the Judgment:

Diplomatic Privilege Act 1964 (England) Sch. 1 Art 32.

Nigerian Rule Referred to In the Judgment:

Court of Appeal Rules 1981 Order 3 Rule 2(1); Order 3 Rule 23.

Books Referred to In the Judgment:

Cheshire: Private International Law 9th Edition P. l14.

Hals. Laws of England Vol. l8 4th Ed. Para. 1575

Appeal:

         This was an appeal from the Ruling of AYORINDE, J. of the High
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Court of Lagos State holding that he had jurisdiction to entertain the Plaintiff’s action against the Defendant on the ground that the latter had waived its diplomatic immunity and submitted to jurisdiction. The court of Appeal by a majority decision (NNAEMEKA-AGU, J.C.A. dissenting) dismissed the appeal against the trial Judge’s ruling.

History of the Case:  

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Lagos.

Names of Justices that sat in the Appeal: Philip Nnaemeka-Agu, J.C.A. (Presided), Uthman Mohammed, J.C.A., (Read the Lead Judgment), Idris Legbo Kutigi, J.C.A.

Date of Judgment: 9th December, 1985.

Appeal No: CA/L/227/84

High Court:

Name of the High Court: High Court of Lagos State.

Name of Judge: Hon. Justice Ayorinde.

Counsel:

Chief F. C. Ozomah -for the Appellants.

E. O. Odeleye – for the Respondents.

MOHAMMED, J.C.A. (Delivering the Lead Judgment): This is an appeal against the ruling of Ayorinde J, in which the learned trial Judge made a finding that his court had jurisdiction to entertain a claim brought before it by the respondent. When the respondent, (plaintiff at the trial court) filed his claim against the African Reinsurance Corporation, the Corporation applied through a motion for the following orders:  

“1.         For extension of time to file the application herein and to deem it properly filed.

2.(a)
to set aside the Writ of Summons and all other processes filed therein on the ground that the Defendant/Applicant is an International Organisation and as such enjoys immunity from legal suit and process.

(b)
to dismiss the action against the Defendant/Applicant on the ground that a finding of immunity on the part of Defendant substantially disposes of the whole action.”

An affidavit, sworn to by the Protocol Officer in the service of the appellant was attached to the motion. Among the exhibits tendered was the Agreement establishing the Corporation. It was made clear in the affidavit that the appellant was an international organisation in Nigeria and it enjoyed immunity from any legal suit.

The respondent on the other hand filed a counter-affidavit and submitted that the appellant did not appear in the diplomatic list of 1981, 1982, and 1983. The respondent argued that by virtue of articles 47 and 48 of the Agreement establishing the Corporation the appellant had full juridical

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personality to sue and be sued in a court of competent jurisdiction in the territory of a country in which the corporation had its headquarters or had appointed an agent for the purposes of accepting service or notice or processes of courts. In another argument the respondent averred that the appellant had waived the immunity by submitting to the jurisdiction of the High Court when it appeared on 27th February, 1984 and opposed a motion brought by the respondent for an injunction and also by appearing on Tuesday 3rd April 1984 during which hearing on an application brought through a motion for an amendment of the Statement of claim was not opposed by the appellant’s counsel.

The learned trial Judge considered all the submissions and the exhibits tendered before him and concluded his ruling with the following finding:-         

      “I briefly state that the Defendant (appellant) applicant must rely on exh. “ARI” which spelt out its privileges, exemption and immunities. This is the bedrock of the agreement with the Federal Republic of Nigeria. The agreement and precisely its article 48(1) makes it possible to sue the Defendant at its Headquarters.”

It is against this ruling that this appeal has been filed. Eight grounds of appeal were argued together by the learned counsel for the appellant.

Earlier, during the submissions before the High Court a certificate from the Ministry of External Affairs was tendered to show that the appellant was a recognised international organisation in Nigeria. The certificate was issued on the 13th of April 1984, and it confirmed:

(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 Nigerian Privileges and Immunities Act, 1962.

The learned trial Judge referred to the certificate , in his ruling, and said that the document from the Ministry of External Affairs, exh. “AR5” had no legal basis for its existence on the matter before the court. The learned Judge further said that there was no order from the Minister declaring the defendant an International Organisation under Section 11 of the Diplomatic Immunities and Privileges Act, of 1962.

The learned counsel for the appellant, Mr. Ozomah has now produced before us an order made on 16th January, 1985 by the Minister of External Affairs under the powers conferred on him by Section 11 of the Diplomatic Immunities and Privileges Act, 1962. The Order had been gazetted as S. 1.3. of 1985 and it came out as a supplement to Official Gazzette No.5 Vol.72, of 31st January, 1985 – Part B. The order is named, Diplomatic Immunities and Privileges (African Re-insurance Corporation) Order 1985 and it provides, inter alia, that the African Re-insurance Corporation is an International Organisation of which Nigeria and foreign sovereign powers are members.

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 the immunities, privileges and exemptions usually accorded to such organisations.

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However, this Order has been promulgated on the 16th of January,1985 and the ruling of the learned trial Judge was delivered on the 30th of August 1984. Although, the learned counsel for the respondent, in his brief, did not raise any objection to such Order being referred to in this appeal, it is relevant to show that it is not wrong at the appeal stage to consider such an Order. Under Order 3 rule 2( 1) of the Court of Appeal Rules. 1981, it has been provided that:

“All appeals shall be by way of rehearing ……? And order 3 rule 23 of the same rules provides that,

“The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may require, including any order as to costs.”

The effect of these orders is to enable this court to give effect to any change in the law by giving a remedy which the court below could not give because of the state of the law at the time it gave judgment. The leading authority on this issue is Quilter v. Mapleson (1882) 9 QBD 672. At page 678 Brown L.J. said:

“The rules were intended to enable the Court of Appeal to do complete justice. If the law has been altered pending an appeal, it seems to me to be pressing rules of procedure too far to say that the Court of Appeal cannot decide according to the existing state of the law. I think that such is not the true construction of the rules, for Order LVII1 rule 5, does not merely enable the Court of Appeal to make any order which ought to have been made by the Court below, but to make such further or other order as the case may require.”

Other cases relevant to this finding are Meade v. Haringey Council(1979) 1 WLR 637 and University of Lagos v. Olaniyan (1985) 1 . 156.

The issue however upon which the learned trial Judge dismissed the objection of the appellant is not on whether the appellant was immune from being sued but on the waiver of the said immunity. In his ruling the learned Judge said:

“In case of the Defendant/Appellant I hold that it is an International Organisation recognised by the Federal Republic ofNigeria. It enjoys immunities, privileges and exemption. It has power to waive or curtail its own immunities. It can waive them permanently or as when occasion arises.”

The learned trial Judge next considered the Agreement establishing the Corporation, exhibit “AR1”, particularly articles 47 and 48 of the said Agreement. It is relevant to reproduce the provisions of those two articles because the decision of the learned trial Judge hinges on their interpretation. Articles 47 and 48 of the Agreement provide as follows:

“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 property; and

(iii)
to sue.

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Articles 48; Legal Process

1.
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 purposes of accepting service or notice or process, or has otherwise agreed to be sued.

2.
Dispute 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 .

    The learned Judge found the provisions of articles 47 and 48(1) and (2) reproduced above, amounted to a waiver of immunities, privileges and exemptions and ruled that he had jurisdiction to entertain the claim.

    In his submission on the issue of waiver, Mr. Ozomah argued that the procedure where the appellant could waive its immunity from being sued had been provided for in article 53 of the Agreement. Counsel referred to the provisions of that article and I find it relevant to reproduce it. It is as follows:

“Article 53 Waiver of the Corporation

The immunities, exemptions and privileges provided in this chapter are granted in the interests 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.”

    Counsel submitted that only the Board of Directors by a resolution could waive its immunity from being sued. Mr. Ozomah further argued that the appellant’s appearance before the trial court and its opposition of the motion of interlocutory injunction did not amount to a waiver. To buttress his submission counsel referred to two cases, namely: Re Republic of Bolivia Exploration Syndicate Limited (1914) 1 CH. 139 and Baccus v. Servicio Nacional Del Trigo (1956) 3 ALL ER 715.

    The Respondents Brief was prepared from the chambers of J.A. Cole and Company, but on the day we heard the oral submissions in court, a counsel, Mr. Odeleye, appeared for the respondent. He relied on the submissions made in the Respondent’s Brief and made no further elucidation of what had been submitted therein.

    In the respondent’s brief it is conceded that the appellant is an international organisation and that it enjoys diplomatic immunities and privileges. However, it is the respondent’s case that the immunity from suit had been waived, firstly by the appellant’s submission to the jurisdiction of the Lagos High Court, and secondly, by the provisions of article 48 of the Agreement establishing the Corporation. Counsel tendered for our perusal the record of proceedings before the lower court which clearly showed that the appellant had submitted to the jurisdiction of the High Court when the hearing was

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opened on the 27th of February 1984. On that day one counsel, Mr. Ajumogobia appeared and opposed an application brought by Miss Ibeneme, in which she prayed the court to grant the respondent an interim injunction until the final judgment. The application was to restrain the appellant from (a) ejecting the respondent from flat 48 Crescent A 1004 Block of Flats, Victoria Island, Lagos; (b) from depriving the respondent the use of (i) African Re-Diplomatic Lizer Passer No. 00053 which has been renewed and validated till 31/12/85; (ii) visa 6641 dated 11/4/83. A ruling was delivered by the learned trial Judge and the application of Miss Ibeneme was granted. On the 3rd of April, 1984 parties were also in court. An application by Miss Ibeneme to amend the statement of claim was granted. The appellant’s counsel, one Mr. Okeke, raised no objection to the application. At the same sitting Mr. Okeke applied for leave to file a statement of defence within a period of 14 days. The application was also granted. About two months later, on the 24th May, 1984, to be precise, Mr. Ajumogobia who appeared for the appellant on that day, argued a motion, seeking for the dismissal of the respondent’s suit because, according to him the appellant, being a recognised international organisation in Nigeria, enjoyed immunity from suit. The respondent’s counsel opposed the motion and argued that even if the appellant had enjoyed diplomatic immunity by its appearance and taking part in the proceedings so far, it had waived such privilege. Secondly the respondents counsel submitted that the provisions of articles 48 of the Agreement amounted to a waiver of the immunity.

In opposing this appeal, counsel for the respondent, in his brief of argument, directed our attention to an authority which I find to be on all, fours with the case in hand. This is the case of John Grisby Jubwe and 2 Ors. (1954) 14 WACA 637. I find it pertinent to state the facts of that case for its relevance to the facts on this case:

“The plaintiffs (now respondent) sued the defendant for damages in tort. When they applied for an order to sue in a representative capacity, he appeared and opposed the application: and on the return day he appeared and pleadings were ordered; to the statement of claims he filed a defence confined to a claim to be exempt from the jurisdiction of the court on the ground of diplomatic immunity as a consul. When the action came on for hearing the Judge gave judgment on the plaintiffs claim without hearing evidence. The defendant appealed, his grounds being (1) that the Judge erred in holding that he had submitted to the jurisdiction, (2) in giving judgment without hearing evidence, and (3) in not allowing him to file a defence in answer to the allegations in the Statement of Claim.

Held: (1) The defendant had submitted to the jurisdiction by appearing and opposing a motion and by accepting an order for pleadings – which made it unnecessary to decide whether as a consul he was not subject to it.”

When the issue of submission to the jurisdiction as raised by the respondent in this case is considered it would show that all the steps taken by John Grisby in the case mentioned above, had been taken by the appellant here.

I have considered the cases referred to by Mr. Ozomah, in his submission in

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support of this appeal, and it is my opinion, that they could easily be distinguished from the facts of this case.

In the case of Re Republic of Bolivia (supra) it was held that diplomatic privilege could be waived, if at all, only with full knowledge of the party’s and with the sanction of his Sovereign or his official superior. In the case of Baccus v. Servicio Nacional del Trigo (supra) it was held thus:

                      “the defendant’s immunity had not been waived since tin steps taken by the defendants in the action were taken on the authority of C (a servant subordinate to the Spanish Minister of Agriculture) who acted in ignorance of any right to immunity being thereby prejudiced and without the authority from a proper representative of the Sovereign State of Spain that was necessary to enable the defendants to submit to the jurisdiction.”

In the referred cases, subordinates of the Sovereign authorities submitted to the jurisdiction of the English Courts without the sanction of their respective Sovereign Authorities directing them to do so. It was held that the issue of immunity is a sovereign’s right and only the sovereign could waive it. Astbury J, in Re Republic of Bolivia Exploration Syndicate Limited (supra) said, inter alia, as follows:

“Thirdly, I am far from satisfied that a subordinate secretary can effectively waive his privilege without the sanction of his Sovereign or legation, and it is clear that, whatever knowledge R.E. Lembeke possessed, the objection on the ground of privilege is now taken with the sanction and at the instigation of the Peruvian legation.”

In my opinion it is a different situation in this case because the lower court was dealing with an International Organisation directly. 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 applied and was granted leave to file statement of defence, within 14 days from the date of application. This in my mind amounts to, submission to jurisdiction of the trial court. John Grisby v. Jubwe and 2 others (supra).

I now turn to the issue of waiver of immunity through the provisions of Articles 48 of the Agreement which had been well contested by both counsel. It is the contention of the appellant that Article 48 does not amount to a waiver. The respondent’s counsel however submitted that Article 48 expressly waived Appellant’s right of immunity from legal action. In considering this aspect of the appeal 1 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 Re insurance) Order 1985, made by the Minister of

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External Affairs, on the 16th January 1985, is relevant to the just decision of this appeal. Section 2(1), (2) and (3) of that Order provides as follows:

            “2(1)      The Corporation shall have the legal capacities of a body corporate and in particular shall have full capacity to contract, to acquire and dispose of movable and immovable property and to institute legal proceedings.

(2)
Except in so far as in any particular case the Corporation expressly waives its immunity from suit and legal process; but no waiver of immunity shall extend to any measure of execution arising out of any action to which subsection 3 of this section relates.

(3)
Disputes arising from reinsurance contracts entered into by the Corporation shall be subject to conventional practices or to ordinary legal process application to comparable business as shall be agreed in the respective contracts.”

It is argued by the respondent in his brief that Article 48 of the Agreement establishing the African Re Corporation is a waiver by the Appellant of its immunity to legal actions. Chapter IX of the Agreement was made up of Articles 46, 47, 48, 49, 50, 51, 52 and 53. Even though I have reproduced the provisions of Articles 47 and 48 above, in this judgment, for the purpose of clarity, it is relevant to reproduce all the articles in chapter IX in order to see whether it is correct that the framers of the Agreement intended Articles 48 to be a waiver as submitted above:

Article 46 Status, Immunities, Exemption 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

1.
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, or has appointed for the purpose of accepting service or notice or process, or has otherwise agreed to be sued.   

2.
Dispute 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

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         forms of seizure, attachment or execution before the delivery of final judgment against the Corporation.

(What of Articles 49, 50 and 51?)

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 as 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 interests 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 Chapters in cases where its action would in its opinion further the interest of the Corporation.

It is without doubt that Article 53 stands as a proviso to the provisions of the remaining articles in the Chapter. The framers of that 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. I agree with the submission of the respondent that Articles 49, 50 and 51 are to provide for express immunity against interference with appellant’s properties and assets, archives, movement of its funds and right of communication. These areas of immunities will give ample protection to the appellant should a plaintiff succeed in legal action instituted by him by virtue of Article 48. Even in paragraph 2 of Article 48 the Agreement was specific in providing that 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 53 is only saying that the Board of Directors of the Corporation

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could, waive the immunities, exemption and privileges provided for in Chapter IX where condition for doing so arises and in the interest of the Corporation. I must emphasise that only those immunities specifically mentioned in the chapter are concerned here. Until the Board of Directors acts accordingly the provisions of those Articles remain binding on those who wish to deal with the Corporation. Article 46 is specific on this point. It says that the status, immunities, exemptions and privileges set forth in this chapter (Chapter IX) shall be accorded to the Corporation in the territory of each state member. Article 48 which provides that legal action may be brought against the Corporation, is without any ambiguity to its meaning and interpretation.

I may consider the question raised by the respondent on the issue of the immunity from suit. The respondent counsel, in his brief, argued that it was inconceivable that a Corporation with powers, inter alia, to perform functions as provided in Articles 4 (Chapter II) of the Agreement or issue shares as provided in Articles 7 (Chapter IV) or declare profit as provided in Article 39 (Chapter VII) would want to appear to be under or seek the protection of diplomatic immunity in its mercantile transactions. 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. 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. Singleton L.J. in his minority judgment in the case of Baccus v. Servicio Nacional del Trigo (supra) referred to an American case of Elen and Compnay v. Bank of Gos-pondartwa Krajowejo (National Economic Bank) (2) 24 N.Y.S.C. 2d 201 where the Court of Appeal of the State of New York held that:

“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 immunity from suit.”

And in another part of his judgment Singleton L.J said that the State of Spain created the defendants as a legal entity and enabled them to trade with citizens of, or with corporate bodies in other countries. In such a case the defendants ought to be bound by the ordinary practice. I say the same thing in respect of the appellant in the case in hand. I see no justification in making the appellant immune from civil litigation once its stock in trade is mercantile transaction.

In conclusion it is my judgment that the appellant had submitted to the jurisdiction of the Lagos High Court and therefore had waived its immunity from suit. Accordingly this appeal is dismissed. I assess N200.00 costs in favour of the respondent.

NNAEMEKA-AGU, J.C.A. (Presiding) (Dissenting): I regret that I am unable to agree with the judgments of my learned brothers just delivered.

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By a writ of summons the plaintiff commenced an action against the defendants, his employers, for the sum of N5,056.00 being special and general damages for wrongful termination of his employment.

The history of the proceedings runs briefly thus: On the 24th of February, 1984, the defendants entered a conditional appearance. Subsequently the plaintiff on 3rd April, 1984, by leave of court amended his claim to claim other sums and entitlements. I should mention that during the hearing of the motion which was not opposed the defendants were represented by one Mr. Okeke, holding brief for one Ajumogobia. The defendants filed a motion for extension of time to file their defence. During further proceedings on the 16th of April, 1984, one Mr. Clottey who appeared as a representative of the defendants was recorded as saying:

“I have not been mandated to speak on behalf of the defendant. I am only here to show our presence. I wish to request an adjournment to find out what happened to our lawyer.”

After this the motion by the defendants for extension of time to file their defence was struck out. On the 7th of May, 1984, the case was adjourned at the instance of the court. On the 10th of May, it was further adjourned at the instance of the plaintiff’s counsel. I should mention, too, that before them that is on 19/4/84, the defendants had filed a motion praying the court to strike out or dismiss the claim for want of jurisdiction on the ground that the defendant’s being an international organization, enjoyed diplomatic immunity from suit or legal process. In paragraph 3,5,6,7,13,15 and 17 of the affidavit in support, sworn to by one Victor Carl Clottey, Protocol Officer of the defendant’s corporation, it was deposed inter alia as follows:

“3.
That the African Reinsurance Corporation is a Corporation established between 36 African Member States of the Organisation of African Unity and the African Development Bank by agreement dated 24th Febraury, 1976 and also by the Headquarters Agreement and Supplementary Headquarters Agreement both dated 10th August, 1977 made between the then Federal Military Government and the African Reinsurance Corporation establishing the Headquarters of the Corporation in Nigeria with its Offices presently at Bookshop House, No. 50/52 Broad Street, Lagos.

(5)
That the Defendant by virtue of its constitution is an international organisation and enjoys all the privileges exemptions and immunities accorded to International Organisations in Nigeria.

(6)
That at the time the Writ of Summons and other processes were filed in this matter on 15th February, 1984, I on behalf of the defendant instructed our Solicitor Mr. Odein Ajumogobia to plead the immunity of the Corporations.

(7)
That I was informed by the said Mr. Ajumogobia that he was not in a position to press the question of immunity in the absence, of documents verifying the status of the Corporation in Nigeria.

 (13)    That the African Reinsurance Corporation is one of the International Organisations listed in the Diplomatic List containing a list of recognised foreign sovereign and international organisations enjoying the said privileges and immunities.

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(15)   That the diplomatic status of the corporation has never been revoked.

(17)  That the document now shown to me and marked Exhibit AR 5 is a copy of the reply from the said Ministry of External Affairs confirming that the Defendant enjoys the status of an International Organisation as specified in the Diplomatic Immunities and Privileges Act 1962.  

The plaintiff swore to a counter-affidavit in which he deposed that the Consular and Diplomatic List exhibited by the defendants was not current and that by Articles 47 and 48 of the Agreement establishing the defendant corporation (hereinafter called the Agreement) the defendants could sue and be sued. In his reserved ruling the learned judge held that the defendants enjoy diplomatic immunity but that by reason of Articles 47 and 48 of the Agreement they had waived it. This appeal by the defendants, appellants herein, is against the said ruling.

The issues for determination arising from the eight grounds of appeal filed in this appeal have been summarised by the learned counsel for the appellants at page 2 of their brief thus:

“(1)  Whether the Certificate of the Ministry of External Affairs is by conclusive as to the status of the Appellant as an International Organisation as specified in the Nigerian Privileges and Immunities Act 1962.

(2)    Whether the provision of Chapter IX of the agreement establishing the African Reinsurance Corporation is conclusive of all the immunities exemptions and privileges enjoyed by the Appellant Corporation. 

(3)    Whether article 48 of the Agreement establishing Appellant Corporation is to be construed as a general waiver of immunity thereby subjecting the appellant to suit and legal process without its consent. 

(4)    Whether the Appellant waived its diplomatic immunity with respect to the present suit by the Respondent.”

I must observe that as the learned Judge had in his ruling found that the appellants were an international organization enjoying diplomatic immunity and there is no cross-appeal against such a finding issue number one should not strictly have arisen. For the learned Judge stated as follows:

“In case of the defendant/applicant I hold that it is an international organization recognised by the Federal Republic of Nigeria: It enjoys immunities privileges and exemptions. It has power to waive or curtail its own immunities. It can waive them permanently or as and when the occasion arises.”

I take it that the learned counsel for the appellants has raised it because the learned Judge had held that the documents from the Ministry of External Affairs, Exh. AR 5, has no legal basis for its existence in so far as it is not an Order from the Minister declaring the defendants an international organization. In my view, to that extent, the learned Judge was in error. For it is expressly provided m Section 18 of the Diplomatic Immunities and Privileges Act (No. 12) of 1962 thus:

“If in any proceedings any question arises whether or not any

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     organization or any person is entitled to immunity from sail and legal process under any provision of this Act, a certificate issued by the Minister stating any fact relevant to that question shall be conclusive evidence of that fact.”

So when in an issue as to whether or not the defendants were on the Diplomatic and Consular list as an international organization recognized by the Federal Military Government of Nigeria, the Ministry of External affairs’ under its seal certified, inter alia, thus:

“(ii)        That the Corporation enjoys the status of an international Organization as specified in the Nigeria Privileges awl Immunities Act 1962,”

such a certificate is conclusive of what it says by reason of section 118 of the Act. Such a fact is among those designated “facts of state”. See Vol. 18 Hals. Laws of England (4th Edn.) para. 1420. In England it is done by the Secretary of State and is recognised by the Court: Engeike v. Musmann (1928) A.C.433. Any lingering doubts one might have entertained about the matter is put at rest by the order of the Minister of External Affairs published in the Federation of Nigeria Gazette No. 5 Vol. 72 of the 31st of January, 1985 which was produced before us by the learned counsel to the appellants. It was argued that the learned Judge had handed down his ruling in the matter. But then the case is still pending: What has been ruled upon is the issue of – jurisdiction on ground of diplomatic immunity. I am impressed by the decision of the Court of Appeal in England in Ghosh v. D’Rozario (1962) 2 All E.R. 640 to the effect that when an action has been commenced and diplomatic immunity subsequently attaches; the correct thing to do is to stay the action indefinitely. To do otherwise is to indulge in an exercise in futility. The instant case is stronger in view of the fact that the immunity which was claimed to have existed before then was in fact confirmed by exh. AR 5 referred to above during the pendency of the action 11(2)(a) and Sch. l of the Diplomatic Immunities & Privileges Act of 1962, unless they have waived it.

The next question is whether the immunity has been waived by the appellants. It is to be noted that the law relating to diplomatic immunity, its waiver and submission to jurisdiction has never been free from difficulties. One of the main causes of the difficulty is that courts have not always distinguished between the common law rule or waiver and waiver under statute. At common law a diplomatic agent or other member of the diplomatic staff may waive his immunity from the civil and criminal jurisdiction of the local courts either by expressly consenting to the proceedings either personally or through his solicitor or impliedly by entering an appearance to the writ or by commencing proceedings as plaintiff or by filing a counter-claim which is related to the cause of action against him. Under Sch. 1, Art. 32 of the Diplomatic Privilege, Act, 1964 (in England) waiver of immunity under the statutes must be express. See Cheshire: Private International Law (9th Edn. p. 114). I take it that the form of appearance which will amount to waiver is generally an unconditional appearance. For as the learned authors of Supreme Court Practice 1982 have stated at paragraph 12/7/4:

“A conditional appearance or appearance under protest is a complete appearance to the action for purposes, subject only to the right reserved to the defendant to apply to set aside the writ or

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the service thereof on arty ground which he can sustain. defendant has the right to appear conditionally where he has a bona fide intention to dispute the jurisdiction of the court.”

See Re Dulles Settlement (1951) Ch. 842, C. A. In the instant case the appellants entered a conditional appearance and later filed a motion to strike out or dismiss the action for want of jurisdiction on ground of diplomatic immunity.  

“I shall now refer to cases which illustrate the two types of waiver, that is at common law and under statute. An example of waiver at common law is the case of Grisby v. Jubwe 14 WACA 637, at p. 638 in which the West African Court of Appeal held that the defendant, a Liberian Consul, had submitted to jurisdiction by appearing and opposing a motion and by accepting an order for pleadings. This case was decided in 1954 before the Act of 1962 on, I presume, the principle of the common law which was applicable by implication under section 45 of the Interpretation Ordinance; Laws of Nigeria, 1948. In that case definitely no statute was cited or relied upon. I would have followed this decision if there were no statutory provisions on waiver in Nigeria. An English case based on the common law principle of waiver is that of The Republic of Bolivia v. Exploration Syndicate Limited (1914) 1 Ch. 139. See also Re Suarez (1918) 1 Ch. 176, at p. 191. As I D shall show shortly, the immunity of the appellants derives from statute. So, the common law principles and cases such as Grisby’s Case (Supra) relied upon by the respondent in paragraph 2.1 of his brief are not decisive.

One important difference between waiver at common law and that under the Diplomatic Privileges Act in England is that in case of the latter, waiver must be express. Of this the learned authors of Hals. Laws of England Vol. 18 (4th Edn.) para. 1575 said:

“Waiver must always be express (then they cited Sch. 1 Art. 32 para. 3 of the Act of 1964). Accordingly, even if a person entitled to immunity has entered an appearance or pleaded otherwise than to the jurisdiction, he may at a later stage prove that his government has not consented to a waiver of his immunity”. (Parenthesis mine)

Hence in R. v. Madan (1961) A1 All E.R. 588 the appellant was on August 9, 1960. convicted at Quarter Sessions in London of obtaining a season’s ticket by false pretences and of attempting to obtain money by false pretences. He was an employee of the Indian High Commission entitled to diplomatic immunity. The solicitor appealing for him before the examining magistrate had purported to waive the immunity on his behalf. He was tried and convicted. Later, on November 21, 1960, the Deputy High Commissioner wrote to the Commonwealth Relations Office re-affirming that the appellant had diplomatic immunity but that in order not to impede the course of justice he was prepared to waive it. It was held that as this letter came after the trial and conviction of the appellant it was of no effect; and that the proceedings against a person entitled to diplomatic immunity were without jurisdiction. Lord Parker, C.J., in the Court of Criminal Appeal, summarized the principle thus:

“Certainly things are clear. In the first place it is not for someone who is entitled to diplomatic immunity to claim it in the courts. It is

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necessary to refer to the authorities, but it is clear that proceedings brought against somebody, entitled to diplomatic immunity are, 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 that 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 he does so as agent or on behalf of the representative of the country concerned; it must be the waiver of the representative of the State.”

See also R v. A.B. (1941) 1 K.B. 455, per Lord Caldecote, C.J., at p. 547. Also Engelke Musmann (Supra) per Lord Buckmaster, at p.140. It was emphasised in Madan ‘s case that the principle of waiver was the same in civil and criminal proceedings. It was also emphasized in all the cases that the immunity was not that of the person or servant but of the state or sovereign which be represents. In the instant case appellants being a corporation their immunity would be that of the Board of the appellant corporation.

    In Nigeria I have to look at the two statutory provisions before I can decide whether or not the law on waiver of diplomatic immunity is the same with that in England. First, Section 15 of the Diplomatic Immunity Act (No. 42 of 1962) provides thus:

“Any organisation may waive any immunity, inviolability or privileges conferred on it or him under this part of this Act.”

If this provision stood alone, I would have come to the conclusion that waiver by implication at common law would suffice. But then the Minister of External Affairs, under powers conferred upon him by S. 11 of the Diplomatic Immunities and Privileges Act, 1962, by Order S.1.3 of 1985, published in the Supplement to the. Federal Republic of Nigeria Official Gazette of the 31st of January, 1985, while the case was still pending (but after the p ruling on jurisdiction), caused to be published Diplomatic Immunities and Privileges (African Re-Insurance Corporation) Order, 1985. In paragraph 2(1)(2) and (3) it is provided as follows:

“(1)
The corporation shall have the legal capacities of a body corporate and in particular shall have full capacity to contract, to acquire and dispose of movable and immovable property and to institute  legal proceedings.

(2)
Except in so far as in any particular case the Corporation expressly waives its immunity, immunity from suit and legal process; but no waiver of immunity shall extend to any measure of execution arising out of any action to which sub-section (3) of this section relates.

(3)
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.” (Italics Mine)

Evidently the drafting of sub-section (2) is far from satisfactory. It appears as if something is missing. From the much it says, however, and reading sub- paragraph (2) and (3) together with sections 11, 15 and Schedule 1 of the

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Act, it appears clear to me that the corporation shall have, inter alia, immunity from suit and legal process, excepting in suits arising from reinsurance contracts; that such immunity may be waived in any particular case; and that any such waiver shall be express. These appear to me to have eliminated in favour of the appellants submission to jurisdiction by implication as was possible at common law. Only express waiver is possible. This in my view opts for a practice analogous to that in England under the Act of 1964, referred to above. It follows that such decisions in such cases as Baccus S.R.L. V. Servicio Nacional Del Trigo (1956) 3 All E.R. 715 will be of much assistance in the instant case. The defendant’s solicitors, acting on instructions from Spain had entered unconditional appearance to the writ, issued summons for security for. costs and obtained a consent order for security for cost against the plaintiff. These were steps which would obviously have amounted to waiver by implication at common law. But these actions were authorized without any knowledge that any right to sovereign immunity was available to the defendants and without the authority of any person high enough to have authorized a waiver. On appeal against an order refusing the defendant’s application to set aside the writ and other subsequent proceedings.          

    “Held (Sigleton, L.J., dissenting): the defendants were entitled to sovereign immunity from suit for the following reasons –

 (i)
They were, on the evidence, a department of the State of Spain, and were none the less so because they had been invested with corporate powers for the purpose of enabling them to carry out their statutory functions under the supervision of the Spanish Minister of Agriculture, and

(ii)
the defendants’ immunity had not been waived since the steps taken by the defendants in the action were taken on the authority of, who acted in ignorance of any right to immunity being thereby prejudiced and without the authority from a proper representative of the Sovereign State of Spain that was necessary to enable the defendants

to submit to the jurisdiction.”

The provisions in the Act of 1964 referred to above appear to be a statutory re-affirmation of the principles in the above case as well as The Jassey (1906) p .270; and R. v. Madan (Supra). I must therefore hold that for what I have said only express waiver is possible in the case of the appellants. Moreover, they entered conditional appearance and proceeded to file a motion to set aside the writ of summons and other processes for want of jurisdiction on ground of diplomatic immunity. The affidavit in support shows that they had always wanted to contest the issue of jurisdiction. Though Mr. Clottey appeared a few times during the adjournments of the case, he made it clear that he was not mandated to speak for the appellants. On this stage of the facts I do not think there were in fact materials upon which I could have found implied waiver, if it was relevant, but it is not.

Finally, I shall consider the argument that by Article 48 of the Agreement establishing the corporation, it has waived its claim to diplomatic immunity. Act 48 provides thus:

“(1)     Legal actions may be brought against the corporation in a court

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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

(22)      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 whom soever held, shall be immune from all forms of seizure, attachment or execution before the delivery of final judgment against theCorporation.”

My first observation about this is that it has nothing to do with waiver. It is merely an enabling provision as to the rights of the corporation to sue and be sued by reason of its corporate status. This becomes more obvious when other subject headings of Chapter IX of the Agreement are considered.The are:

        Art. 46 –                “Status, Immunities, Exemptions, and Privileges”

                                       (general statement)

        Art. 47 –                “Status in Member Countries”

        Art. 48 –                “Legal Process”

        Art. 49 –                “Immunities of Asset”

        Art. 50 –                “Immunities of Archives”

        Art. 51 –                “Freedom of Assets from Restrictions”

        Art. 52 –                “Privilege for Communications”

        Art.53 –                 “Waiver of the Corporation”

        Article 53 expressly provides thus:

“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 and privileges provided in this Chapter in case where its action would in its opinion further the interests of the Corporation.”

Quite apart from the fact that Art.53 would be unnecessary if Act. 48 carries any implication of waiver as has been urged on us, Article 48 does not deal with waiver at all. Moreover, it is clear from the parties clause to the Agreement that it was an agreement between the Member States of the Organisation of African Unity and the African Development Bank. By the very letters of Art. 53, it is the Board of the Corporation which has been vested with the power to waive its immunities in cases where its action would be in the interest of the Corporation. I do not see that the parties to the agreement intended to impose general waiver on the Corporation. Above all, it appears to me that the principle of wholesale submission of the Corporation to the jurisdiction of the courts in its headquarters country in all cases, as the view being urged on us by the respondents postulates, will run counter to the accepted principles of waiver in international law, that is: that the question of waiver arises only in individual cases and at the time when the person or organisation which has the immunity is required to elect whether or not he or it would submit to jurisdiction. Re-affirming this principle in The Parlement Belge 5 P.D. 197. at p. 214 Lord Esher said:

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“What is the time at which he can be said to elect whether he would submit to the jurisdiction? Obviously, as it appears to me, it is when the court is about or is being asked to exercise jurisdiction over him, and not any previous time”.

In Mighell v. Sultan of Jalore (1894) 1 Q.B. 149 the Court of Appeal in England decided that submission to jurisdiction cannot take place until the jurisdiction is invoked. Lopez L J. said at p. 16l:?

“In my judgment, the only mode in which a sovereign can submit to the jurisdiction is be submission in the face of the Court …”

See also Kay, L.J. at p.163 and Lord Esher, M.R. at p.159. The only conclusion I can reach from all the cases is that there is no precedent for the type of submission the respondents are urging on us by reason of Art.48. The article itself has nothing to do with waiver of immunity.

Not being satisfied that the immunity of the appellants has been waived, I would therefore allow the appeal and hold that their plea of diplomatic immunity succeeds.

The appeal is allowed. I strike out the action and make no order as to costs.

KUTIGI, J.C.A.: The sole question for determination in this appeal is whether or not the appellant corporation, an international organisation, enjoys immunity from suit and legal process.

First to be considered is the certificate from the Ministry of External Affairs (EXHIBIT “AR.5”). It is dated 15th April 1984. It only says that the appellant “enjoys the status of an international Organisation as specified in the Nigeria Privileges & Immunities Act, 1962”. It clearly by itself confers no immunity whatsoever on the appellant. This must be so because the Diplomatic Immunities and Privileges Act No.42 of 1962 (hereinafter called the Act) does not also by itself automatically confer immunities or privileges on international organisations. It is the First Schedule of the Act that contains a list of Immunities and Privileges applicable to International Organisations; while the Minister is enjoined under section 11(2)(a) the Act, by an order in the gazette, to specify the extent of such immunities and privileges that any international organisation enjoys. So that although by EXH.”AR 5″, the appellant was recognised to be an international organisation, it enjoyed no privileges or immunities unless and until the Minister said so and by an order in the gazette too. This he did on 16/1/85 (see below). International Organisations are quite distinct and separate from foreign envoys and consular officers who have their immunities and inviolabilities conferred on them by the Act itself – long before they arrive in Nigeria. No further action of the Minister is required in respect of these people (see section 1(1) & (2) of the Act thereof). It must also be pointed out that “EXHIBIT AR-5” was not issued by the Minister Section 18 of the Act read:-

“If in any proceedings any question arises whether or not any organisation or any person is entitled to immunity from suit and legal process under any provision of this Act or of any regulations made under this Act, a certificate issued by the Minister stating

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                             any fact relevant to that question shall be conclusive evidence of that fact.”

        (Italics Mine)

I would therefore agree with the trial judge that the certificate has no legal basis for its existence on the matter before the court.

Secondly in the diplomatic Immunities and privileges (African Re-Insurance Corporation) Order 1985 (S.1 No.3 of 1985) dated the 16th day of January 1985 and made under section 11 of the Diplomatic Immunities and Privileges Act No.42 of 1962. The Order or instrument clearly, amongst other things, conferred immunity from suit and legal process on the appellant as from the date it was made i.e. 16/1/85. I must say that it came rather too late to have any effect on this case. The ruling, subject matter of this appeal, was delivered on 30th August 1984, while the cause of action arose in December 1983 (see the writ of summons). There is no indication that the Order has retrospective effect. It is therefore not relevant in this appeal and I treat it as such.

Thirdly the Agreement Establishing the African Re-Insurance Corporation itself, the appellant. It is EXHIBIT “AR-1”. I have had a close look at Chapter IX consisting of Articles 46 to 53. These articles spell out is dear terms the extent of the appellant’s privileges, exemptions and immunities. Apart from the fact that Article 48(1) makes it possible to sue the appellant in its Headquarters, which Nigeria is, I am unable to identify any article in the Agreement which confers immunity from suit and legal process on the appellant.

Article 48(1) reads:-

“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.”

It is certainly not the function of the court to make agreement for the pasties. We cannot change it either. Article 48(1) above is clear and unambiguous. In the light of all that I have said above I would have thought that the issue of waiver of the immunity has not arisen in the case. But even if there is such immunity at all I would agree with my learned brother Muhammed J.C.A. that the appellant has waived it in the circumstances of the case as a whole.

The appeal is therefore dismissed with costs as assessed in the lead judgment.

Appeal Dismissed.

Editor’s Note: Nnaemeka-Agu, J.C.A. Dissented.

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