International law ‑ Diplomatic
privilege ‑ Immunity from
judicial process ‑ Engaging in
commercial transaction ‑
Diplomat purchasing personal
effects from colleague at post ‑
Whether constituted engagement
in commercial transaction ‑
Whether immunity lost ‑
Diplomatic Immunities Act 1962
(Act 148) art 31(c) and 42.
Practice and procedure ‑ Action
‑ Diplomatic immunity ‑ Ministry
of Foreign affairs certifying
status of diplomat ‑ Court to
determine immunity on affidavit
evidence, not in full-fledged
trial.
The plaintiff sold his personal
effects including his car to the
defendant, his
successor-in-office, when he
left Ghana at the end of his
service as the Chancellor of the
Spanish Embassy. He issued the
writ herein by his attorney
against the defendant in the
High Court, for $20,000 being
the value of the items plus
interest. The defendant entered
conditional appearance and
applied to set aside the service
of the writ of summons and
statement of claim, contending
that as a diplomat he was
protected by diplomatic immunity
and was not amenable to the
jurisdiction of the courts of
Ghana. The Ministry of Foreign
Affairs issued to the court a
certificate confirming the
defendant’s diplomatic status
and his immunity from the civil
and administrative jurisdiction
of the courts of Ghana subject
to the provisions of article 31,
1(a) (b), and (c) of the Vienna
Convention on Diplomatic
Relations (1961).
The trial judge held that the
letter was conclusive on the
status of the applicant. However
in order to determine whether
the purchase of those items by
the defendant constituted
commercial activity for private
profit to divest the defendant
of immunity under article 31 of
the Convention, incorporated
into the Diplomatic Immunities
Act 1962 (Act 148), the trial
judge dismissed the application
to enable the case proceed to
trial, with liberty to the
defendant to raise the objection
afresh.
On appeal, counsel for the
defendant submitted that the
transaction did not amount to
commercial activity and that the
judge ought to have resolved the
issue on the affidavit evidence
by the parties and the
certificate by the Ministry.
Held:
(1) reading articles 31(c) and
42 of the Act together, a single
act of buying the vehicle and
other personal effects could not
constitute a commercial
activity. Erichsen v Last
(1881) 8 QB 414, Griffiths
(Inspector of Taxes) v J P
Harrison (Watford) Ltd
[1963] AC 1, HL, Armon v Katz
[1976] 2 GLR 115, CA
referred to.
(2) On the available
affidavit evidence the trial
judge could have decided the
matter without proceeding to
trial. To constrain the
diplomatic agent to participate
in a full trial in order to
determine whether he was immune
was tantamount to divesting him
of his immunity. Once the
immunity was proved, if it was
not lost or waived, the court’s
duty was to stop the action. The
appeal would be allowed and the
writ set aside. Armon v Katz
[1976] 2 GLR 115, CA,
Engelke v Musmann [1928] AC
433, HL referred to.
Cases referred to:
Armon v Katz
[1976] 2 GLR 115, CA.
Duff Development Co Ltd v
Kelantan Government
[1924] AC 797, [1924] All ER Rep
1, 3 BILC 216, 93 LJCh 343, 131
LT 676, 40 TLR 566, 68 Sol Jo
559, HL, 22 Digest (Reissue)
156.
Engelke v Musmann
[1928] AC 433, [1928] All ER Rep
18, 6 BILC 129, 97 LJKB 789, 139
LT 586, 44 TLR 731, HL, 11
Digest (Reissue) 738.
Erichsen v Last
(1881) 8 QBD 414, 51 LJQB 86, 45
LT 703, 46 JP 357, 30 WR 301, 4
TC 422, CA, 28 Digest (Reissue)
369.
Griffiths (Inspector of Taxes) v
J P Harrison (Watford) Ltd
[1963] AC 1, [1962] 2 WLR 909,
106 SJ 281, [1962] 1 All ER 909,
[1962] TR 33, 41 ATC 36, 40 TC
281, HL.
Suarez, Re, Suarez v Suarez
[1918] 1 Ch 176, [1916-17] All
ER Rep 641, 87 LJCh 173, 118 LT
279, 34 TLR 127, 62 Sol Jo 158,
CA, 21 Digest (Repl) 691.
APPEAL from the judgment of the
decision of the High Court to
the Court of Appeal.
Okudzeto
(with him Amegatcher and
Duncan (Mrs)) for
appellant.
FORSTER JA.
The plaintiff-respondent
(hereinafter called the
‘plaintiff’) was the Chancellor
of the Spanish Embassy until
November 1987, when he left
Ghana. The defendant-appellant
(hereinafter called the
‘defendant’) was also a diplomat
at the embassy in 1987. He was
promoted in 1988 to the rank of
Chancellor and left Ghana in
1990 when his tour ended.
On 22/11/89, the plaintiff per
his lawful attorney, Bagnel
Tena-Urrutia, issued a writ of
summons against the defendant in
the High Court, Accra. Endorsed
on the writ were the following
claims:
“1. The sum of 20,000 dollars
being money due and owed by the
defendant to the plaintiff in
respect of household items and a
vehicle purchased by the
defendant from the
plaintiff and
presently being used by the
defendant.
2. Interest on the claimed
amount at the prevailing
commercial rate of interest
commencing from the date of
issue of plaintiff’s writ of
summons commencing action till
date of judgment.”
The defendant entered
conditional appearance on 4
December 1989. On 8 December
1989, the defendant sought to
move the court to set aside the
service of the writ of summons
and statement of claim. In a
supporting affidavit, the main
averment relevant to the motion
was that the defendant, as
Chancellor of the Embassy of the
Kingdom of Spain in Accra, was
protected by diplomatic
privilege or immunity and was
not therefore amenable to the
jurisdiction of the courts of
Ghana.
In the course of the
proceedings, the Ministry of
Foreign Affairs certified in a
letter dated 2 February 1990 to
the Chief Registrar of the High
Court that the defendant, Jose M
A Torreton “has diplomatic
status.” In another letter
addressed to the solicitors of
the defendant and dated 30 April
1991, the Ministry of Foreign
Affairs confirmed that the
defendant was a member of the
diplomatic staff of the Embassy
of Spain from 1987-1990 and had
diplomatic ranking. It was
further certified that:
“(d) Mr Torreton’s status as a
Diplomatic Agent for the period
of his tour entitled him to
enjoy immunity from the civil
and administrative jurisdiction
of the courts of Ghana subject
to the provisions of article
31(1)(a), (b), (c) of the Vienna
Convention on Diplomatic
Relations (1961).”
This second letter from the
Ministry of Foreign Affairs was
tendered in the subsequent
proceedings. On 24 October 1991,
the motion was argued before Her
Lordship G T Lutterodt. The main
issues were:
“(a) whether the defendant was
protected by diplomatic
immunity;
(b) whether, if so protected,
the defendant lost that immunity
because he had in the present
case engaged in a commercial
activity outside his official
functions.”
The trial judge, in her judgment
dated 18 November 1991 relied on
Armon v Katz [1976] 2 GLR
115 and rightly held that:
“In the instant case exhibit 1
is conclusive evidence of the
full diplomatic status of the
applicant and we need not
determine the issue of his
status by the known and ordinary
mode of determining issues of
fact, that is to say in
accordance with the rules of
evidence.”
That finding of the
conclusiveness of the
certificate or statement of the
Ministry of Foreign Affairs as
to the status of the diplomatic
agent is the product of the
society of nations and a
fundamental principle of Public
International Law. For as was
said by Lord Buckmaster in
Engelke v Mussmann [1928] AC
433 at 446.
“It would, indeed, be
unfortunate if, after
recognition had been afforded by
His Majesty through the Foreign
Office to people as holding such
posts on the ambassadorial staff
as entitled them to the
privilege and the statement as
to their position had been
afforded on behalf of the Crown
through the Attorney-General it
was to be disregarded by the
judiciary, for, in such
circumstances, the ensuing
contest could not possibly inure
to the public good.”
And see also Duff Development
Co v Kelantan Government
[1924] AC 797, Re Suarez
[1918] 1 Ch 176.
The second ambit of the matter
was whether the purchase of the
plaintiff’s vehicle and personal
effects by the defendant
constituted “commercial
activity” and for “private
profit” and thereby divested
himself of his diplomatic
immunity as conferred by article
31 of the Diplomatic Immunities
Act 1962 (Act 148). That Act
incorporated the provisions of
the Vienna Convention on
Diplomatic Relations. On this
issue the trial judge said that
to be able to resolve that
matter she must first ascertain
the proper law of contract. She
then concluded:
“I am in no position by looking
at the statement of claim and
some other facts (some of which
are disputed and are contrary to
what the plaintiff has pleaded
are in issue and so can only be
determined by evidence) stated
in an affidavit to determine
what is the proper law of the
contract. I think the proper
thing to do in this case is to
dismiss the motion and allow the
case to proceed to trial. The
defendant is at liberty to raise
these matters he has raised and
call for the dismissal of the
suit at the appropriate stage of
the trial.”
In effect, the trial judge would
wish the case to proceed to
trial and evidence led, and the
defendant might then raise the
objection to the jurisdiction
afresh.
Article 31 of the Diplomatic
Immunities Act 1962 (Act 148)
provides as follows:
“A diplomatic agent shall enjoy
immunity from the criminal
jurisdiction of the receiving
state. He shall also enjoy
immunity from its civil and
administrative jurisdiction,
except in the case of:
(c) an action relating to any
professional or commercial
activity exercised by the
diplomatic agent in the
receiving state outside his
official functions.”
In terms of article 42 also the
diplomatic agent “shall not
practice for personal profit any
professional or commercial
activity.”
The trial judge did not decide
the issue whether the purchase
of the plaintiff’s vehicle and
other household effects by the
defendant was a commercial
activity so as to take away from
the defendant the protective
shield of the immunity. In her
view, without evidence in a
trial, it was impossible to
determine the place of contract
and then the question of the
immunity or the loss thereof.
Counsel for the defendant has
maintained that the judge erred
in failing to resolve that issue
on the strength of the affidavit
evidence by the parties and the
letters issued by the Ministry
of Foreign Affairs; and in
counsel’s view the transaction
did not amount to commercial
activity.
I accept the argument of learned
counsel for the defendant.
Reading articles 31(c) and 42
together, it seems to me that
the act of buying the vehicle
and other personal effects
cannot be construed as
constituting an activity of a
commercial nature. I interpret
the exercise or practice of
commercial activity to mean the
regular or frequent or repeated
exercise in prosecution of an
activity of a commercial nature.
In Erichsen v Last (1881)
8 QBD 414 at 420 discussing what
amounted to the carrying on of a
business by a foreign company
for tax liability, Cotton J
said:
“In my opinion when a person
habitually does and contracts to
do a thing capable of producing
profit, and for the purpose of
producing profit, he carries on
a trade or business.”
No such habitual pursuit of any
activity for profit is borne out
by the facts in this case. The
facts of this case clearly
establish a single isolated act
‑ the purchase of the vehicle
and other household items of the
plaintiff. Such an isolated
activity cannot in my view
amount to the type of activity
of commercial nature envisaged
in article 31(c), unless there
is present a profit-making
motive or purpose so as to
convert an otherwise colourless
activity into a commercial one.
In Griffiths (Inspector of
Taxes) v J P Harrison (Watford)
Ltd [1963] AC 1,
Denning LJ said:
“…when you find that it was an
isolated transaction, as this
was, and it was not the object
to make a trading profit, as
there was none here, you at
least have some grounds and
reasonable at that for thinking
there was not a trade nor an
adventure in the nature of
trade.”
I read an adventure in the
nature of trade as having the
same meaning as an exercise of
an activity of a commercial
nature. The contention that,
that single act of purchase
constituted a commercial
activity cannot therefore be
valid. There was evidence before
the court that the defendant, as
certified by the Ministry of
Foreign Affairs, was on the
diplomatic list and therefore
protected by diplomatic
immunity. The transaction in
question needed no more evidence
than was exhibited to establish
whether or not it was the
exercise of commercial activity.
On the available evidence the
trial judge could have decided
the matter without proceeding to
trial and this she should have
indeed done. To require the
diplomatic agent to participate
in a full trial to enable the
judge to determine whether or
not his immunity is lost in
terms of article 31(c), would be
tantamount to compelling him to
divest himself of the protective
shield of the immunity. As was
said by Lord Phillimore in
Engelke v Musmann, supra
at p 449:
“Where
an application is made to stop a
suit in limine and the
application rests upon a
disputed matter of fact, it
would be right that the evidence
should be scrutinised. On the
other hand, where an applicant
is claiming that he is
privileged from litigation, it
seems a strange result if he is
forced to litigate in order to
obtain his exception from
litigation.”
I think that on the strength of
the evidence before the trial
judge she could and should have
found that the defendant’s claim
to diplomatic immunity was
sufficiently established as to
warrant the setting aside of the
writ. Diplomatic immunity as a
shield against suits brought
against the agent in the
jurisdiction of the receiving
State has always been a painful
concession, for it is often
abused. But as was pointed out
by Lord Buckmaster in Engelke
v Musmann, supra:
“It is possible that it is open
to abuse. It is of the essence
of all privileges that it may be
abused but that question has
nothing to do with the matter we
are called upon to decide.”
If immunity is proved, if it is
not lost or waived, the court’s
duty is to stop the action,
however much we may sometimes
begrudge the indulgence.
For the above reasons, I allow
the appeal and set aside the
writ.
LAMPTEY JA.
One of the issues raised by this
appeal was how a diplomatic
agent must prove his immunity
from the domestic jurisdiction
of our courts. In considering
this issue I have found the case
of Armon v Katz [1976] 2
GLR 115 helpful. In that case
the same issue was raised,
examined and determined by the
Court of Appeal. In the course
of his scholarly judgment,
Apaloo JA expressed the opinion
that an official letter from the
Ministry of Foreign Affairs
indicating that a person was a
diplomatic agent and enjoyed
immunity from court process was
conclusive proof of the status
of that diplomatic agent. The
learned judge reproduced the
headnote from the case of
Engelke v Musmann [1928] AC
433, HL as follows:
“A statement made to the Court
by the Attorney-General on the
instructions of the Foreign
Office as to the status of a
person claiming immunity from
judicial process on the ground
of diplomatic privilege, whether
as ambassador or as a member of
the ambassador’s staff, is
conclusive.”
and observed that in ordinary
litigation this piece of
evidence may properly be
classified as hearsay evidence,
in so far as there can be no
cross-examination on such a
statement. The ratio decidendi
was fully explained by Lord
Phillimore at page 451. I need
not reproduce that passage in
this judgment. In the Armon
case (supra) Apaloo JA gave the
following advice:
“I venture to suggest that a
court faced with a similar
problem in the future would do
well to cause the Foreign
Ministry to be addressed on the
matter and an official
communication from the Ministry
to the effect that the person
affected was or was not
recognised as a diplomatic
agent, should, unless the court
has reason to doubt the
genuineness of that
communication, be conclusive of
that matter.”
I am of the view that if the
trial judge had adverted to the
practice direction offered by
the learned judge she no doubt
would have felt satisfied that
the certificate from the
Ministry of Foreign Affairs
declaring the status of the
defendant was conclusive proof
of that status. With respect,
the trial judge erred when she
held that she needed further
evidence from the defendant to
enable her determine and decide
the issue of his status. Apaloo
JA was of the opinion that “it
was desirable and in accord with
public interest that on such a
matter both the executive and
judiciary should speak with one
voice.” I agree with the opinion
expressed by the learned judge.
I am satisfied that the evidence
before the trial judge on the
status of the defendant was
sufficient in law to prove and
establish the diplomatic status
of the defendant. It was
therefore wrong for the trial
judge to put that issue down for
trial and advise the defendant
to raise his status as a defence
to the action. That approach is
plainly and clearly wrong. It is
not supported by law and the
decided cases.
It is for these reasons that I
concur that the appeal be
allowed.
AMUAH JA.
I also agree that the appeal be
allowed.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner
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