JOSEPH N. SIEWE v. COCOA PRODUCERS ALLIANCE (2013)

JOSEPH N. SIEWE v. COCOA PRODUCERS ALLIANCE

(2013)LCN/6476(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 30th day of October, 2013

CA/L/524M/09

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

JOSEPH N. SIEWE Appellant(s)

AND

COCOA PRODUCERS ALLIANCE Respondent(s)

RATIO

WHETHER OR NOT ANY LEGAL PROCEEDINGS BROUGHT AGAINST A PERSON BODY OR AUTHORITY ENTITLED TO DIPLOMATIC IMMUNITY ARE PROCEEDINGS WITHOUT JURISDICTION

The same Diplomatic Immunities and Privileges that is before the court now were also before the Supreme Court in the two cases. It is clear therefore that a conflict in the decision of the Supreme Court in African Re-insurance Corporation v. Fantaye (supra) and African Re-insurance Corporation v. J.D.P. Construction Limited (supra).
Was there really a conflict between these two decisions of the Supreme Court above? It becomes really apposite to state the holdings of the Supreme Court to determine the conflict alleged or not. In A.R.C. V. Fantaye (supra), the Supreme Court at page 812 unanimously allowing the appeal, the Supreme Court held as follows:
1. In Nigeria, the applicable law in respect of Diplomatic Immunities and Privileges is the Diplomatic Immunities and Privileges Act 1962, No. 42.
2. Under the Diplomatic Immunities and Privileges Act 1962, No. 42, diplomatic immunities are claimable by Organizations declared by the Minister of External Affairs to be Organizations, the members of which are sovereign powers (whether foreign powers or Commonwealth thereof).
3. Where the evidence before the Court shows that the Defendant is a department of a sovereign State, albeit itself a corporate body, then the action is one between the Plaintiff and the Foreign sovereign State, or the part of the foreign sovereign State represented by the departmental body concerned.
4. The immunities under the First Schedule to the Diplomatic Immunities and Privileges Act 1962, include immunity from suit and legal process.
5. The Appellant, being an international Organization enjoys immunity from suit and legal process, both by virtue of Sections 11 and 18 of the 1962 Act, and Exhibit AR5 (Certificate issued by the Minister of External Affairs).
6. Where a sovereign or International Organization enjoys immunity from suit and legal process, waiver of such immunity is not to be presumed against it. Indeed, the presumption is that there is no waiver until the contrary is established.
7. Thus, waiver of immunity by a Sovereign or International Organization must be expressly and positively done by that Sovereign or International Organization.
8. A conditional appearance, before a Court, even if a submission to jurisdiction, is clearly an appearance under protest.
9. Before the enactment of the Diplomatic Privileges and Immunities Act No. 42 of 1962 the Common Law of England as propounded in Grisby v. Jubwe (14 W.A.C.A. 634) was in force in Nigeria.
10. Under the principles of Customary International Law, a foreign sovereign cannot be impleaded in the Court of another sovereign in any legal proceedings either against his person or for the recovery of specific property or damages, neither can his property or property in his possession be seized or detained by legal process.
11. Immunity from process can be claimed not only from the inception of an action but even after the claimant had taken steps in the suit. Thus, immunity can be claimed even after the conclusion of proceedings.
12. There is no difference in principle between the Sovereign and Immunities accorded a State and those of Institutions.
13. The general principles that confer diplomatic immunity against legal process confer an equal immunity against the continuation of pre-existing and hitherto properly constituted proceedings.
14. Any legal proceedings brought against a person, body or authority entitled to diplomatic immunity are proceedings without jurisdiction and therefore null and void, unless and until there is a valid waiver which could bring the proceedings to life and invest the Court with jurisdiction.
15. Article 48 of the Agreement establishing the Appellant which enables legal proceedings to be instituted against the Appellant where it has agreed to be sued, is only an enabling provision, enabling the Appellant, when it so desires, and acting through its appropriate officers, to expressly waive its immunity and submit to legal process.
16. In the instant case, by the combined effect of Article 48 and 53 of the Agreement establishing the Appellant, there can be no waiver, in absence of any evidence that the Board of Directors of the Appellant, has on the Appellant’s behalf, expressly so resolved.
17. In the instant case, the fact that the Appellant deals in mercantile transactions does not mean that it cannot claim immunity, since the cause of action before the Court is based on wrongful termination of a contract of employment.
18. It is an established rule of International law that no action in personam can be brought against a foreign sovereign State or department, even when it is involved in a commercial venture.
19. The Appellants never submitted to jurisdiction of the Court, having entered a conditional appearance, and subsequently filed an application to set aside the writ of summons on the ground of their immunity from legal process.
20. The Treaty establishing the Appellant being an agreement between African States, and the Respondent not being a party to it, he (the Respondent) cannot seek either to rely on it or benefit therefrom.
21. Under the rules of Municipal Law, only parties to a contract can seek to enforce its terms and not a third party who is a stranger and not privy to it.
22. Treaties do not constitute part of the law of the land merely by virtue of their conclusion by a country. In Nigeria, by virtue of Section 12(1) of the 1979 Constitution, they will have the force of law, only after, or to the extent that they have been enacted into law by the Federal Military Government.
While in A.R.C. v. J.D.P. Construction (supra) the brief facts of that case are that the appellant is a Corporation carrying on a re-insurance business in Nigeria while the respondent is a civil engineering company incorporated in Nigeria. By a Written Contract between the parties, the respondent agreed with the appellant to construct the appellant’s head office building at Victoria Island Lagos for a tentative sum of US$6,234,989.66. One of the clauses in the agreement provides that the parties agreed to subject themselves to the jurisdiction of the High Court of Lagos in the resolution of any dispute arising from the contract.
The Supreme Court held (unanimously dismissing the appeal and the Cross-appeal):
That the appellant had waived its diplomatic immunity in the instance case by agreeing that it could be sued in the Written Contract. Also, that since the activities covered in this case are commercial in nature, the defence of Diplomatic Immunity cannot avail the appellant in the circumstance.
The answer this court will return whether there exist any conflict between the two decisions of the supreme court, the former and the latter is no. The principles laid down by the Supreme Court in Fantaye’s case (supra) remains the locus classicus on the subject to wit the fact that any legal proceedings brought against a person body or authority entitled to diplomatic immunity are proceedings without jurisdiction. The case of A.R.C. v. J.D.P Construction Ltd (supra) came with its own peculiarity. PER BAGE, JC.A.

SIDI DAUDA BAGE, J.C.A. (Delivering the Lead Ruling): The Applicant filed a motion on Notice dated the 26th day of June, 2009 and filed on the 29th day of June, 2009. The application was brought pursuant to sections 6(6)(A), 36, 241 and 243(a) of the 1999 Constitution of the Federal Republic of Nigeria, Section 15 and 24 (4) of the Court of Appeal Act, Order 4 Rule 6, Order 7 Rules 6, 7 and 10 of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court.
The Applicant in the main had prayed for the following orders.

1. An order granting leave to the applicant to
a. To apply for an order enlarging the time within which the applicant may apply for leave to appeal to the Court of Appeal against the decision of the Honourable Justice Isaac Ejiofor of the Federal High Court sitting at the Lagos Judicial Division delivered on the 7th day of March 2006 in suit no FHC/L/CS/992/2004 Siewe V Cocoa Producers Alliance.
b. To apply for an order of extension of time within which to appeal to the Court of Appeal against the decision of the Honourable Justice Ejiofor of the Federal High Court sitting at the Lagos Judicial Division delivered on the 7th day of March, 2006 in suit no FHC/L/CS/992/2004 Siewe V Cocoa Producers Alliance.
c. To apply for an order extending the time within which the applicant may file the notice and grounds of appeal against the decision of the Honourable Justice Isaac Ejiofor of the Federal High Court sitting at the Lagos Judicial Division delivered on the 7th day of March 2006 in suit no FHC/L/CS/992/2004 Siewe V Cocoa Producers Alliance.
2. An order granting the applicant leave to canvass questions of mixed law and facts in the appeal to be filed against the decision of the Honourable Justice Isaac Ejiofor of the Federal High Court sitting at the Lagos Judicial Division delivered on the 7th day of March 2006 in suit no FHC/L/CS/992/2004 V Cocoa producers Alliance.
3. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

The learned counsel to the Respondent opposed this applicant vide their counter affidavit dated and filed the 29th of March, 2010. The said counter affidavit contains five (5) paragraphs.

Further to that, the learned counsel to Respondent filed a Notice Preliminary Objection, dated and filed the 18th of March 2010.The said Notice of Preliminary Objection was also accompanied by a five (5) paragraphs expedient for ease of reference and appreciation to set out the said Notice of Preliminary Objection.

NOTICE OF PRELIMINARY OBJECTION
Brought pursuant to Order 7 Rule 1, Order 10 Rule 1 of the Court of Appeal Rules 2007, S.2 of the Diplomatic Immunities and Privileges (Cocoa Producers’ Alliance) Order 1969 and under the inherent jurisdiction of the Honourable Court.

Take notice that this Honourable Court will be moved on the ……… day of ……….. 2010 at the hour of 0 O’clock or so soon thereafter as counsel on behalf of the Respondent/Applicant may be heard praying the court for the following:
(i) An Order of this Honourable Court striking out or dismissing this appeal on the basis of lack of jurisdiction and for;
(ii) And such Order and further Order (s) that this Honourable Court may deem fit to make in the circumstances.

GROUND OF OBJECTION
The Respondent/Applicant, being a body recognized under the Diplomatic Immunities and Privileges (Cocoa Producers’ Alliance) order 1969, has immunity from suit and legal processes, under by virtue of the Diplomatic Immunities and Privileges Act, 1962.

For ease of management of this application by the order of this court made on 24/3/11, parties were ordered to file written addresses. The applicants counsel, C.A. Chanbang Esq. filed the applicants written address in respect of the application dated the 26th day of June 2009, dated the 28th of March, 2011 and filed on the 4th of April, 2011. Also in response to the Respondent’s written address, the learned applicant’s counsel filed the applicants’ written address in reply to the Respondents address dated the 29th of April, 2011 and filed on the 4th of May, 2011. The learned counsel to the Respondent Alade Agbabiaka, SAN, filed the Respondent’s written address in opposition to the applicants application dated the 26th day of June, 2009.

The Notice of Preliminary Objection filed 18/3/10 was accompanied by a five (5) paragraphs affidavit deposed to one Chijoke Ugwuanyi, Male, Nigerian, Legal Practitioner of No. 184B, Corporation Drive Dolphin Estate, Ikoyi, Lagos.

The said paragraphs are set out as follows:
(1) That I am a Legal Practitioner in the law Firm of Alade Agbabiaka & Co., Solicitors to the Plaintiff/Applicants herein and by virtue of the aforesaid position, I am conversant with the facts of this case.
(2) That I have the consent and authority of both my employer and that of the Applicant/Respondent to depose to this affidavit.
(3) That I was reliably informed by Alade Agbabiaka SAN of counsel and I verily believe him, the facts following:
(i) That by the Abidjan Charter, Nigeria together with some other countries assembled on the 19th and 20th January, 1962, to adopt the Cocoa Producers, Alliance Charter.
(ii) That by the fact stated above, Nigeria became a Signatory to the said Cocoa Producer’s Alliance Charter.
(iii) That on 8th April, 1969, pursuant to the provisions of the Diplomatic Immunities and Privileges Act, 1962, an Order was made by the then (Federal), Commissioner for External Affairs relating to the legal capacity of the Respondent/Applicant herein.
(iv) That the said Order otherwise called, Diplomatic Immunities and Privileges (Cocoa Producers’ Alliance) Order, 1962 confers immunity on the said Respondent/Applicant from suits and legal processes, unless it has expressly waived such immunity.
(v) That by the said provision contained in S.2 of the said Order, the Respondent/Applicant is privileged and thus immune from any action including the present one.
(vi) That the Respondent has not at any time during the hearing of this action in the court below or even now, whether expressly or by implication, waive its immunity to warrant the institution of the same against it by the Appellant herein.
(4) That this Honourable Court is hereby urged to decline jurisdiction over this action in the interest of justice and in accordance with the rule of law.
(5) That I make this oath in good faith and in accordance with the Oaths. Act in force.

The Respondent to the Notice of Preliminary Objection (the Appellant) on the 28/10/10 filed a counter affidavit against the Respondent’s Notice of Preliminary Objection and reply to the Counter Affidavit (1, 2, 3, 4, 5, 6, 7).
(1) That I am a Litigation Clerk in the chambers of C. O. TOYIN PINHEIRO & CO., Solicitors to the Applicant.
(2) That by virtue of my position I am conversant with the facts herein deposed to.
(3) That I have seen and read the affidavit in support of the preliminary objection and the counter affidavit filed in opposition to the application before the court.
(4) That the applicant Mr. Joseph Nguenkam Siewe informed me and I verily believe as follows:
i. That after his appointment was terminated by the secretary general of the respondent who was never authorized by the chairman of the general assembly of the respondent, the secretary general Mr. Hope Sona Ebbai in the year 2003 wrote a petition against him to the Ministry of Foreign Affairs that he applicant was parading himself as a diplomat at the borders of Nigeria.
ii. That the petition was referred to the Nigerian Police who investigated the matter and found it not to be true.
iii. That the internal administrative machinery of the respondent has no provision for anybody to seek redress as the secretary general blocks all access to the general assembly of the respondent which is the highest decision making body of the respondent.
iv. That the respondent having initiated proceedings against him cannot claim any immunity in the court.
v. That his employment is governed by the staff regulation of the respondent and he was employed by the general assembly of the respondent and not by the secretary general of the respondent who unilaterally terminated the appointment of the applicant without the instruction of the general assembly of the respondent. A copy of the staff regulation is attached and marked as exhibit, “S3”.
vi. That he is a staff employed in Category B (special) scale 1 and he is not a staff which the secretary general can unilaterally terminate his employment. A copy of employment contract is attached and marked as exhibit “S4”.
(5) That Mr. C. A. CHANBANG ESQ. counsel to the Defendant/Applicant informed me and I verily believe as follows:-
i. That the respondent having lodged a report against the applicant has initiated proceedings and has waived all privileges and immunities which it enjoyed under the VIENNA CONVENTION ON CONSULAR RELATIONS
ii. That the issue before the court relates to a contract and not a criminal matter. A copy of the Vienna Convention on Consular Relations is attached and marked as exhibit “S5”.
iii. That the respondent was established by a charter and there was a headquarter agreement for the respondent. A copy of the charter and the head quarter agreement are attached and marked as exhibit “S6 and S7”.
(6) That it will be in the interest of justice if the Honourable Court grants the application of the applicant.
(7) That I make this affidavit in good faith conscientiously believing same to be true and in accordance with the Oaths and Affirmation Act.

The main thrust of the Notice of Preliminary Objection of the Applicant (Respondent) is that as a body entitled to diplomatic immunity the proceedings against it are without jurisdiction. This was argued at the lower court, but overruled which formed the basis for this appeal.

The applicant with respect to this application relied heavily on the decision of the Supreme Court in African Re-insurance Corporation v. Abate Fantaye (1986) 3 NWLR (Pt.32) 811 at 812 – 813.

Learned counsel to the Respondent in this application, (appellant) maintained that 21 years later in African Reinsurance Corporation v. J.D.P. Construction Limited (2007) 5 – 6 SC 96, the Supreme Court refused to uphold its earlier decision regarding the defence of immunity to an organization which was established under a charter granting it immunity.

Specifically the Lagos High court was mentioned in the agreement as the venue for such resolution. Also since the activities covered in this case are commercial in nature, the Supreme Court decided that the defence of Diplomatic Immunity cannot avail the appellant in the circumstance. This court cannot find the conflict in the two decisions of the Supreme Court as alleged by the appellant, but rather the circumstances of the latter decision gave rise to the decision of the Supreme Court on it.

Having examined the two decisions of the Supreme Court above, this court will now examine the brief facts of the instant appeal and the application thereto. In the instant appeal, the brief facts of the matter is that, the applicant filed an action against the Respondent seeking to set aside the letter of termination of his employment and that he be reinstated into his employment and all his salaries and allowances paid up to date. Now where is the semblance of facts between the present application and the African Re-insurance Corporation v. J.D.P Construction Ltd (supra) relied upon? In the latter, there was an express clause in the agreement waiving the diplomatic immunity.

Secondly, the Supreme Court gave consideration to the nature of the transaction between the parties, which was of a commercial nature. In the present application, what is at stake is a contract of employment between the parties, the termination thereof and a claim for the payments of all salaries and allowances up to date. The applicant has not stated any express clause between the parties on how to deal with a breach or wrongful act in their agreement.
He has not shown whether a contract of employment constitutes a commercial activity as was considered by the Supreme Court in A.R.C. vs. J.D.P Construction Ltd (supra). This he needed to do, to bring the facts of the present application in line with J.D.P Construction Ltd case above. The appellant/applicant has not shown how the Respondent cannot be entitled to diplomatic immunity in accordance with the decision of the Supreme Court in Fantaye’s case (supra). I need to mention here that, an action related to a contract of employment, it is of common knowledge, is an administrative action. Also as can be gathered from the facts submitted before this Court, the complaint the Respondent made to the Ministry of External Affairs and to the Police against the Appellant/Applicant to stop parading himself as a diplomat did not constitute a waiver of diplomatic immunity as defined in A.R.C. Vs. J.D.P. Construction Ltd (supra). There is nothing before this Court, to move it, to remove the diplomatic veil against Respondent in the circumstance of the present case before this Court. In other words, the present action of the appellant/applicant cannot be maintained against the Respondent/Applicant to the Notice of Preliminary Objection.

On the whole therefore, the Respondents Notice of Preliminary Objection dated and filed 18/3/2010 is hereby upheld by this Court.

In consequence therefore, the appeal No. CA/L/524M/2009 is hereby struck out by this Court together with the Motion on Notice dated 25/6/2009 and filed on the 29/6/2009 for lack of jurisdiction.

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the Ruling just delivered by my brother SIDI DAUDA BAGE J.C.A. and I agree with his opinion and conclusion that this appeal be and is hereby struck out. The Notice of Preliminary Objection is hereby upheld by me.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the ruling just delivered by my learned brother, SIDI DAUDA BAGE JCA. I agree with his reasoning and conclusions. The Respondent being a body recognized under the Diplomatic Immunities and Privileges (Cocoa Producers’ Alliance) Order 1969 enjoys diplomatic immunity by virtue of the Diplomatic Immunities and Privileges Act, 1962. The organization is immune from the jurisdiction of the court. Such diplomatic immunity can be waived Dickinson v. Del Solar (1930) 1 KB 376 @ 380; Grisby v. Jubwe & Ors. 14 WACA 637. The Respondent did not waive its immunity. I agree that the preliminary objection has merit. I also uphold it. I abide by the consequential orders in the lead Ruling.

Appearances

C.A. ChambangFor Appellant

AND

G.K. Abdulsalam & M.O. NasirFor Respondent