HIGH COURT, ACCRA
DATE: 20 OCTOBER 1967
BEFORE: ANTERKYI J.
CASES REFERRED TO
(1) Engelke v. Musmann [1928] A.C. 433; 97 L.K.J.B. 789;139 L.T. 589; 44 T.L.R. 731, H.L.
(2) Johore (Sultan of) v. Abubakar Tunku Aris Bendahar [1952] A.C. 318; [1952] 1 All E.R. 1261;
[1952] 1 T.L.R. 1106; 96 S.J. 325, P.C.
NATURE OF PROCEEDINGS
APPLICATION by the defendants to set aside the service on them of a writ on grounds of immunity from the jurisdiction of the court.
[p.626] of [1967] GLR 624
The facts are fully set out in the ruling.
COUNSEL
Miss A. A. Ayisi for the plaintiff.
Cole for the defendants.
JUDGMENT OF ANTERKYI J.
This is an application by the defendants to set aside the service on them of the writ in this case on grounds of immunity from the jurisdiction of the court.
By the endorsement on the writ filed on 18 May 1967 the plaintiff “claims N¢10,000.00 through her next friend, Hanan Katz, against the defendants jointly and severally (whereof N¢100.00 represents special damages) being damages for injuries and losses suffered by the plaintiff as a result of the negligence of the first defendant the servant or agent or both of the second defendant.”
In the statement of claim filed together with the writ, after pleading by the first seven paragraphs the circumstances in which the car accident occurred the plaintiff pleaded further that: “(8) The plaintiff says that at the material time the first defendant was driving as the servant or agent or both of the second defendant.
(9) The plaintiff says that after the accident the second defendant gave the address of the London & Lancashire Insurance Co., Ltd. as his insurers and told the plaintiff to contact the insurance for any claim she may have.
(10) The plaintiff says that before she could contact the said insurance company she received a letter saying that passenger liability is excluded under the terms of the policy and therefore no claims will be entertained by them.
(11) The plaintiff will contend that she was not a passenger and that the insurance company is liable to satisfy any damages which she may be awarded against the first defendant.
(12) The plaintiff says that the insurance company has accordingly been notified under the terms of the Motor Vehicles (Third Party Insurance) Act, 1958, and will proceed against the insurance company for the satisfaction of any damages that may be awarded against the first defendant.
PARTICULARS OF INJURIES
(a) Nasty laceration of face, arms and leg.
(b) Contusion of right calf, left buttocks and neck.(c) Haematoma of right calf.
(d) Dislocation of left thumb.
[p.627] of [1967] GLR 624
PARTICULARS OF SPECIAL DAMAGE
(a) Necklace .. .. .. .. .. N¢ 4.00
(b) Handbag, medium size .. .. .. N¢ 3.00
(c) Embroidered purse .. .. .. N¢ 5.00
(d) Contents of ¢12.00 .. .. .. N¢ 12.00(e) Mirror and cosmetics .. .. .. N¢ 4.00
(f) Ball point pen `Parker’ .. .. .. N¢ 2.00
(g) Women’s dress .. .. .. .. N¢ 60.00
(h) Finger ring .. .. .. .. .. N¢ 5.00
(i) Bracelet .. .. .. .. .. N¢ 5.00
—————
N¢100.00”
—————
Upon the writ and statement of claim being served on the defendants on 18 May 1967 (the same day on which they were filed) the defendants, by their solicitor entered conditional appearance on 26 May 1967.
“without prejudice to an application by Yechiel Armon and his said next friend and Mr. Shalomo Armon to set aside the writ of summons herein and the service hereof on them for want of jurisdiction on the grounds of their diplomatic immunity.”
And pursuant to the entry of this conditional appearance this application was filed on 1 June 1967 to set aside the service of the writs on the defendants for want of jurisdiction.
In the affidavit of “Mrs. Shalomo Armon,” as next friend to Yechiel Armon, she as Miriam Armon, states she is the wife of the second defendant and that the second defendant, her husband, is the “First Secretary of the Embassy of Israel in Accra,” and that the name “Shalomo” on the writ should be read as “Shalomo,” and that the first defendant Yechiel Armon is their son. In the affidavits it is contended by them that each of them (the husband, wife and son) is in possession of a “Ghana Government Diplomatic identity card” “signed by the Principal Secretary, Ministry of Foreign Affairs,” and bearing as an endorsement at p.3 thereof a certificate that: “The bearer of this identity card has been notified to the Ministry of Foreign Affairs, Accra, Ghana, as a person holding the position indicated herein and is entitled to the courtesies and privileges of a person of diplomatic status.”
[p.628] of [1967] GLR 624
They contend that they three are therefore entitled to the immunity, rights and privileges accorded in Ghana to the second defendant as First Secretary, and that in that regard they are not amenable to the jurisdiction of the courts of Ghana, and, inferentially, therefore, that the service of the writs should be set aside for want of jurisdiction.
During the hearing of the application the arguments in the affidavits were canvassed by Mr. Cole, counsel for the defendants. He tendered the three identity cards in evidence for the inspection of the court. And he tendered in evidence as exhibits 3 and 4 respectively as issued in August 1967 by the Ministry of External Affairs, Accra, Ghana booklets entitled the List of Diplomatic Missions in the Republic of Ghana and the List of Consular Corps., Trade Representatives and Non-Diplomatic Staff of Diplomatic Missions in the Republic of Ghana. At p. 32 of exhibit 3 under the heading “Israel, Embassy of the State of Israel, Charge d’Affaires (i.e. First Secretary),” appear the names, “Mr. Shlomo Armon, Mrs. M. Armon” and their residential telephone number is given as 77216. These names do not appear under the heading “Israel” at p. 34 of exhibit 4. Miss Ayisi, counsel for the plaintiff, in opposing the application contended forcefully that this application to set aside the service of the writ was misconceived, as under Order 12, r.24 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), the Order and rule under which the notice of motion was stated to have been brought, an application to set aside the writ for irregularity is pertinent only to themode of issue or of service of the writ, and that there had occurred nothing irregular either in the mode of issue or in the mode of service; and that diplomatic immunity, did not fall within irregularity, because diplomatic immunity is subject to be waived, and that such a waiver cannot precede the issue and service of the writ, but may come after. Counsel substantially contended also that the law on the point must be considered, and that the Diplomatic Immunities Act, 1962 (Act 148), governed the matter. Referring to article 31.1 (c) in the Schedule to the Act, counsel submitted that the conduct of the defendants as complained of in the statement of claim did fall within article 31.1 (c) and was not within the official duties of the second defendant. At this juncture, I must dismiss this argument that the present action brought by the plaintiff is an action “relating to any professional or commercial activity” of the second defendant as between the parties to the suit and therefore that the conduct of negligent driving complained of falls within the exclusion of diplomatic
[p.629] of [1967] GLR 624
immunity stated in article 31.1 (c) of the Schedule to Act 148, and I cannot also uphold the later contention of counsel that the fact of the second defendant insuring his car makes the consequent obtaining of the insurance policy an engagement in a “commercial activity” vis-a-vis the plaintiff. In reply, Mr. Cole substantially contended that with regard to the first defendant and his next friend as members of second defendant’s family, article 37 must be held to apply, and that in relation to the position of second defendant as first secretary, in this matter, article 1 (c) and (d) and (e), but not (f), governed the matter.
I now have to resolve the issues whether or not (1) the second defendant is really a first secretary and whether he in that capacity is entitled to the diplomatic immunity as being claimed to oust the jurisdiction of the court in his favour, and (2) whether or not consequently, such immunity and ouster of jurisdiction apply in favour of the first defendant and his next friend, his mother.
In the course of this application a letter dated 11 April 1967 purported to have been signed by a Miss A.V.A. Wood as Principal Secretary (Legal and Consular Department) and to have been received from the Ministry of External Affairs, and addressed to the Judicial Secretary, was passed on to me. It reads as follows:
“Ministry of External Affairs,
P.O. Box M.53,
Accra.
11 August 1967.
My Ref.: No. PR/IM/VE-IS
Dear Sir,
SARA KATZ (THROUGH HER NEXT FRIEND, HANAN KATZ) VERSUS YECHIEL ARMON
(THROUGH HIS NEXT FRIEND, SHLOMO ARMON)
It has been brought to the attention of this Ministry that a motor accident case involving Mr. Shalomo Armon, First Secretary of the Embassy of Israel and his son Yechiel, for which writ of summons No. 21867 was served on Mr. Shalomo Armon, is now before the High Court. The next hearing of the case is scheduled for 14 August 1967.
The Ministry is informed that there is some doubt as to the extent of the privileges and immunities granted to Mr. Armon and I therefore wish to state for the information of the court that Mr. Armon[p.630] of [1967] GLR 624 is entitled to full diplomatic privileges and immunities under Act 148. I draw your attention to article 31 of the Schedule to the Act which is the relevant article in this case. These privileges and immunities are extended to the family of Mr. Armon by article 31.1 and could only be waived by the Government of Israel.
So far no information has been received to this effect. I shall appreciate if you would bring the above to his lordship’s attention to enable the case to be disposed of as soon as possible since Mr. Armon feels hampered by the long delay in having the case disposed of.
Yours faithfully,
(Sgd.) A.V.A. Wood, Miss
PRINCIPAL SECRETARY
(LEGAL & CONSULAR DEPARTMENT)
(A.V.A. WOOD, MISS)
The Judicial Secretary,
Supreme Court,
Accra.”
This letter, though apparently knowledgeably couched in firm words as assurance, and inferentially urging the court to dispose of the matter as soon as possible, is no proof of the facts stated therein, save, probably, as to the description in it of Mr. Shlomo Armon as the “First Secretary of the Embassy of Israel” and of Yechiel as his son. The writer, though probably a Permanent Secretary of the Ministry of Foreign Affairs should herself have given evidence as to the facts stated and subjected herself to cross-examination; for the writer is not one of the defendants-applicants in this matter, because, with regard to cross-examination of a defendant who is by his affidavit claiming diplomatic privilege, Lord Philimore had this to say in Engelke v. Musmann [1928] A.C. 433 at p. 449, H.L.: “If this case now turned upon the question whether the defendant should be cross-examined upon his affidavit, or not, it may be that the result would be unfavourable to him. 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 scrutinized. On the other hand, where an
[p.631] of [1967] GLR 624
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 exemption from litigation.”
In that case the appellant Engelke as the defendant in an action brought against him by the respondent Musmann for the recovery of rents reserved by, and damages for breach of covenants contained in, a lease of certain premises made between the respondent of the one part and the appellant of the other part. The appellant having entered a conditional appearance applied to have the writ and all subsequent proceedings set aside on the ground that he was a consular secretary on the staff of the German Embassy and, therefore, entitled to immunity from civil proceedings. In support of this application he filed affidavits stating the nature of his employment and making the claim to immunity. In an appeal from a decision of the Master given in chambers, Shearman J. ordered the appellant to attend for cross-examination, but gave him leave to appeal. The appeal came before the Court of Appeal. The Attorney-General attended and at the request of the court informed them that the appellant had been appointed a member of the staff of the German Embassy, under the style of Consular Secretary and had been received in that capacity by the British Government,that his name had been submitted to the Foreign Office by the German Ambassador in the usual way and that his position as a member of the Embassy was and had been since December 1920, recognised without reservation or condition of any sort. And the Attorney-General stated further that he gave the information both on the instructions of the Foreign Office and on his own responsibility as Attorney-General. The Court of Appeal by a majority of two made an order affirming the order of Shearman J. From that order of the Court of Appeal the appellant appealed further to the House of Lords. The Attorney-General then lodged a petition praying for leave to intervene, and consequently lodged a printed case in terms of the facts he had earlier put before the Court of Appeal.
In conclusion of his judgment, Lord Philimore stated at p. 455: “My Lords, if I am not mistaken, when a question arises in the Law Courts as to whether a ruler is a Sovereign, and a proper Secretary of State is consulted, the right answer is not ‘A.B. is a Sovereign,’ but ‘A.B. is recognized by His Majesty as a Sovereign,’ so I think, the exact inquiry in this case is not whether the defendant is a member of the Ambassadorial staff but whether he has been accepted and recognized by the Crown as such a member, and it appears to me that he has so been.
[p.632] of [1967] GLR 624
Therefore, my Lords, I think that this appeal should be allowed.” Now, exhibit 3 entitled List of Diplomatic Missions in the Republic of Ghana is dated August 1967, but according to paragraphs (4) to (7) of the statement of claim, the cause of action arose on 26 February 1967. Whether or not, before or at the date of service of the writ on the defendants, they were entitled to the diplomatic immunity is nebulous. Therefore, even though in exhibit 3 the booklet entitled List of Diplomatic Missions in the Republic of Ghana tendered in evidence by the applicants, appears the name of Mr. Shlomo Armon as the First Secretary and, the booklet on its front cover purports to show that it was issued in August 1967 by the Ministry of External Affairs, Accra, Ghana, this affords no legal or conclusive proof that, at the material time (26 February 1967), the said Mr. Shlomo Armon was a “First Secretary or Charge d’Affaires of the Embassy of Israel in Ghana,” and that he had been so recognized by the paramount ruling authority in Ghana, so as to enable this court to uphold that, in that recognised capacity, he is a “diplomatic agent” as defined in article 1 (e) in the Schedule to the Diplomatic Immunities Act, 1962 (Act 148), and to come to the conclusion, that he, in that capacity, is entitled to the enjoyment of the immunity from the jurisdiction falling within article 31 of the Schedule to Act 148, on that material date 26 February 1967, the date on which the cause of action allegedly arose. Consequently I am unable to uphold that under article 37 of Act 148 the first defendant and his next friend, his mother, as the son and wife of the second defendant, are entitled to the enjoyment of the privileges and immunities specified in articles 29 to 36, at the time of the service of the writ, or, at any rate, at the time the cause of action arose, if the time of the cause of action is material in the issue before the court.
Apart from those considerations I must look at the spirit and intendment of the Schedule to Act 148 which, by section 1 of the Act, shall have the force of law in respect of articles 22, 23, 24,and 27 to 40. One of the preambles of this Schedule, which is the Vienna Convention, is stated thus: “Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.” This part of the preamble to the Vienna Convention is very material to the issue before the court. The conduct of the defendants as [p.633] of [1967] GLR 624
complained of in the statement of claim is in no way in connection with the performance of theirfunctions within their mission.
All the decided cases, in English law, based upon the common law of England before and after the Diplomatic Privileges Act, 1708 (7 Anne, c.12), and the Diplomatic Privileges (Extension) Act, 1944 (7 & 8 Geo.6, c. 44), came into force, were decided, as regards immunity from jurisdiction, not on the basis of:
“Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,” but on the basis solely that, at the material time of serving the writ on the defendant, he, the defendant was, as proved, a diplomatic agent or a person, within that foreign mission, entitled to such immunity from the jurisdiction of the courts. The question did not fall to be decided within the purview of the Vienna Convention. And even if I should have upheld that all the defendants are entitled to the full immunities under article 31, guided by the above considerations, I should have gone a step further, thus: the question now before the court is whether or not the defendants-applicants enjoy immunity from the jurisdiction of the court, and not whether or not they are liable to the plaintiff in the sum being claimed on the writ. By paragraph (12) of the statement of claim, “The plaintiff says that the insurance company has accordingly been notified under the terms of the Motor Vehicles (Third Party Insurance) Act, 1958, and will proceed against the insurance company for the satisfaction of any damages that may be awarded against the first defendant.” On the basis that the defendants enjoy immunity from the jurisdiction of the court, if this liability could be established without resort to the courts, that liability may still attach to them, but only execution cannot be carried out against them by process of this court, unless they submit to the jurisdiction. With regard to such liability, it is pertinent to observe that section 6 (1) (b) and (3) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), read thus: “6. (1) A policy of insurance for the purposes of this Act must be a policy which—
(a) is issued by an insurer . . .; and
(b) insures such persons or classes of person as may be specified in the policy in respect of any liability which may be incurred by him or them in respect
[p.634] of [1967] GLR 624
of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle covered by the policy . . .
(3) Notwithstanding anything in any written law contained a person issuing a policy of insurance under this section shall be liable to indemnify the persons or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of those persons or classes of person.”
Now if by section 1 of Act 148, articles 21 to 24 and 27 to 40, the articles under which the defendants are claiming immunity from the jurisdiction of this court, have the force of law, that written law clothing them with this immunity becomes hopelessly emasculated when it is read side by side with subsection (3) of section 6 of Act 42 of 1958 above referred to. If therefore the alleged policy of insurance regarding the user of the car covers the plaintiff or the first defendant in this case as one of the persons, or as falling within the classes of person, specified in the policy, the insurance company are bound by section 6 (3) of Act 42 of 1958 to pay the damages complained of as a liability under the coverage of the policy. Primarily, as between the injured plaintiff, and the first defendant tortfeasor, the first defendant should first pay the plaintiff for the damage and then be obligatorily indemnified by the insurance company. Orthe company is, by obligation in law, to pay for any damage suffered by the injured plaintiff, once the circumstances point to a liability which the policy purports to cover. Article 41, paragraph 1 of the Schedule to the Diplomatic Immunities Act, 1962 (Act 148), reads: “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.” This duty to respect the laws and regulations may take an active form or a passive form, namely, (1) doing an overt act in compliance with the laws, and (2) a passive act or an omission in compliance with the laws. Under section 3(1) of the Motor Vehicles (Third Party Insurance) Act, 1958, save as to the exemptions falling within section 5 thereof, the mode of use of any motor vehicle must be covered by a policy of insurance against third party risks on pain of the penalties stated in section 3 (2) and (3). To effect a policy of insurance pursuant to
[p.635] of [1967] GLR 624
section 3 (1) of Act 42 of 1958, is in my view an overt act in compliance with the laws. By section 10(1) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958): “10. (1) If after a certificate of insurance has been delivered under the provisions of subsection (4) of section 6 to the person by whom a policy has been effected judgment in respect of any such liability as is required to be covered by a policy issued under the provisions of paragraph (b) of sub-section (1) of section 6, being a liability covered by the terms of the policy, is obtained against any person insured by the policy then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of such judgment any sum
payable thereunder in respect of the liability including any sum payable in respect of costs and any sums payable by virtue of any written law in respect of interest on that sum or judgment.”
In this regard the obligation to pay the damages involved in any liability covered by the terms of the policy is that of the insurer, and if there is a liability attaching to a person, qua insurer, not a party to an action for damages relative to the use of the insured vehicle, the defendants as the persons primarily liable in law to the plaintiff, by effecting the policy of insurance for the protection of third parties, cannot legally claim the privilege and immunity from the jurisdiction of the court, when the policy was effected in compliance with the requirements under the Motor Vehicles (Third Party Insurance) Act, 1958. By the preamble to this Act, it is “An Act to make provision for the protection of third parties against risks arising out of the use of motor vehicles, and for purposes incidental thereto.” The defendants, therefore, cannot legally, after taking an insurance policy in respect of their vehicle in compliance with the requirements of the Motor Vehicles (Third Party Insurance) Act, 1958, for the very purposes intended by the Act and then, upon those purposes arising or being realised, seek to repudiate those purposes under the cloak of diplomatic immunity from the jurisdiction of the very courts which are by law to be the watchdogs of the operation of the Act. The plaintiff in this case falls within that class of third parties for the protection of whom the Act was passed. The damages being claimed by him are, in the circumstances, one of the “purposes incidental” to the protection of third parties; and the machinery, by which such purposes incidental to that protection could be effected,[p.636] of [1967] GLR 624
is the institution by the injured party of an action in a court of competent jurisdiction to establish before that court, first, a liability covered by the terms of the policy, against any person insured by that policy; secondly, to obtain a consequential judgment against that person insured by that policy; and, thirdly, to obtain a decree of that court to the effect that the insurer shall pay to that third party, entitled to the benefit of that judgment, any sum payable thereunder. This is what is meant by section 10 (1) of Act 42 of 1958. I therefore hold that the defendants, by their very act of expressly effecting the policy of insurance in pursuance of Act 42 of 1958, did so expressly for all the purposes and intendment of the Act, and therefore thereby did expressly waive any privilege and immunity from the jurisdiction of a court competent to adjudicate on matters falling within the framework of the Act; and that by so effecting the policy the defendants expressly agreed to lend aid to an injured third party falling within the protection of the Act and the terms of the policy, to enable that third party to be indemnified by the insurers. The defendants cannot lawfully rely on the policy to make a claim in respect of the damage to their car as resulting from the accident and, at the same time, seek to repudiate liability in respect of the injuries to the plaintiff as a result of the same accident, under the guise of a claim of immunity from the jurisdiction of the court.
The defendants cannot, immediately before the alleged accident, credit the plaintiff with being within the class of persons falling within the terms of the policy, and then, after the accident, seek to repudiate their liability to the plaintiff under a flimsy defence in the guise of the alleged immunity from the jurisdiction of the court. The injustice of bringing their application in those circumstances lies in the very act of their attempt to repudiate their liability on the ostensible ground of diplomatic privilege and immunity, for at pp. 276-277 of Law in the Making (5th ed.) by Sir Carlton Allen it is stated that: “If it is true that precedents are employed only to discover principles, so it is true that principles are employed only to discover justice . . . Nobody claims that the law always achieves ideal moral justice, but whatever the inevitable technicalities of legal science may be, they exist for the prosecution of one aim only, which is also the aim of the judge’s office: to do justice between litigants, not to make interesting contributions to legal theory. This dominant purpose all precedents, all arguments, and all principles must subserve; and when precedents do not help, enlightenment must be found elsewhere. Hence
[p.637] of [1967] GLR 624
arise those cases’ of first impression’ which are by no means uncommon in the courts, even at this day when so many permutations and combinations of circumstances have been considered and recorded. To what, then, do the judges turn? To those principles of reason, morality, and social utility which are the fountain-head not only of English law but of all law. The judge is not embarrassed by the absence of ‘authority’ in clear cases of this kind, for no authority is needed for the affirmation of the very essence of law.”
In Sultan of Johore v. Abubakar Tunku Aris Bendahar [1952] 1 All E.R. 1261 at p. 1268 Viscount Simon, reading the opinion of the Privy Council, stated that, “Their Lordships do not consider that there has been finally established in England…any absolute rule that a foreign independent sovereign cannot be impleaded in our courts in any circumstances.”
I therefore hold that the circumstances of this case afford one of the examples in which a diplomatic agent can fairly and justifiably be impleaded, on the basis that, second defendant’s very act of expressly effecting the policy within the intendment envisaged by Act 42 of 1958 amounted to an express waiver of his immunity from the jurisdiction of this court during the term of operation of the policy, and he cannot now be heard to reclaim that immunity when the purpose envisaged by the Act and the relative insurance policy have now fructified for the benefit of the plaintiff.
The defendants cannot in those circumstances stand in the path of justice and clank their diplomaticchains of privilege and immunity to arrest justice. This court will pass by those chains undeterred. The application is accordingly dismissed and the writ is to take its normal course under the rules. Costs of N¢70.00 for the respondent against the applicants.
DECISION
Application dismissed.
D.R.K.S.
