ARMON AND ANOTHER

vs.

KATZ

[COURT OF APPEAL, ACCRA]

[1976] 2 GLR 115

DATE: 5 APRIL 1976.

COUNSEL:

R. KORSAH FOR THE APPELLANTS.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.

CORAM:

APALOO, SOWAH AND FRANCOIS JJ.A.

JUDGMENT OF APALOO J.A.

This appeal raises the somewhat novel but interesting questions as to what legal
privileges diplomatic agents enjoy in this country and how their immunity from the
domestic jurisdiction of our courts is proved. But before entering into an examination of
these questions, it is well to relate the facts.

On 26 February 1967, the respondent who I shall hereinafter call the plaintiff, rode in a
car driven by the first appellant (hereinafter called the first defendant). This car
belonged to the second appellant (hereinafter referred to as the second defendant). The
latter is the father of the first defendant. At a point along the Weija-Accra road, that car
went into ditch and the plaintiff suffered injuries. Both the plaintiff and the first
defendant are infants according to the laws of this country. The plaintiff was then
seventeen-and-a-half years of age and the first defendant was half-a-year her senior, he
being eighteen years old.
On 18 May 1967, the plaintiff through her next friend Hanan Katz, caused to be issued
against both defendants a writ claiming “damages for injuries and loss suffered by the
plaintiff as a result of the negligence of the first defendant the servant and/or agent of
the second defendant.” To the writ, was attached a statement of claim. That statement
shows that the infant defendant was sued per his mother, Mrs. Shalomo Armon, who
was described as “his next friend.” Although nothing on this case turned on this,
perhaps I should point out that while an infant sues by his next friend, he defends an
action by his guardian ad litem.

The record shows that the writs were served on both defendants on the date of issue,
namely, 18 May. On 29 May 1967 both defendants entered conditional appearance
“without prejudice to an application ... to set aside the writ of summons . . . for want of
jurisdiction on the grounds of diplomatic immunity.”

Paragraph (6) of the statement of claim averred negligent driving against the first
defendant but no particulars of it were given. There were, however, particulars of
injuries and special damages alleged to have been suffered by the plaintiff. Apart from
the absence of the particulars of negligence, the plaintiff’s pleading contains one
peculiarity. The second defendant seems to have insured the car in obedience to the
requirements of section 3 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No.
42 of 1958). Although no relief was sought against the insurers in this action and no
issue can properly be joined between them and the plaintiff, no less than four of the
twelve-paragraph statement of claim contain averments regarding insurance. But for
the fact that this irrelevant pleading was an important consideration in the court’s
ruling, this fact would have been unworthy of mention. Since the fact of insurance
weighed heavily with the trial judge, it is necessary to recite the averments in the
pleading specifically referable to it, namely, paragraphs (9)-(12):
“(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 claim 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 [she] will
proceed against the insurance company for the satisfaction of any damages that may be
awarded against the first defendant.”
On 1 June 1967, the defendants moved the court to set aside the service on them of the
writ of summons. They claimed that they were diplomatic agents of the State of Israel
and were, as such, not amenable to the jurisdiction of the court. There was evidence that
the second defendant was the First Secretary of the Embassy of Israel, the infant
defendant was his son and his guardian ad litem was the wife of the second defendant.
This application was resisted on a number of grounds. In so far as it is possible to
determine the grounds of objection from the judge’s notes they are that: (1) though
ambassadors and foreign sovereigns enjoy full diplomatic immunity, officials of the
embassy do not; (2) inasmuch as the second defendant engaged in commercial activity,
article 31 of the Vienna Convention on Diplomatic Relations precludes him from relying
on diplomatic immunity and (3) as the wrong on which the action was founded fell
outside the official duties of the second defendant, he could not shield himself under
the cloak of diplomatic immunity.

The learned judge, Anterkyi J. (in his ruling delivered on 20 October 1967, unreported;
digested in (1968) C.C. 10) refused to set aside the service of the writ on two grounds,
namely, first, there was no “legal or conclusive proof” that at the date of the accident,
the second defendant had been recognised as the First Secretary of the Embassy of Israel
by the “paramount ruling authority in Ghana,” and secondly, that by taking a policy of
insurance pursuant to the Motor Vehicles (Third Party Insurance) Act, 1958, the second
defendant had expressly waived any privilege or immunity from jurisdiction he might
have had. One of the grounds urged by counsel for the plaintiff for denying diplomatic
immunity to the second defendant was that the insurance company with which the
latter insured, was a commercial organisation and by entering into a contract of
insurance with that organisation, the second defendant had engaged in a commercial
activity outside his official functions and article 31. 1. (c) of the Vienna Convention
debars him from claiming immunity from the jurisdiction of the court. The learned
judge expressly rejected that wholly untenable contention but the fact that it was made,
reflects the quality of the legal argument advanced on behalf of the plaintiff.

The defendants invite us to upset the ruling on the ground: (1) that there was conclusive
evidence before the court that the second defendant was a diplomatic agent and was
accordingly immune from the jurisdiction of the court, and (2) that the judge was in
error in holding that by insuring the car in obedience to the municipal law of this
country, he had waived his diplomatic immunity. It is to the credit of the judge that
although his conclusion favoured the plaintiff, he did not found his ruling on the
grounds urged by counsel for the plaintiff. One does not require a profound knowledge
of public international law to reject the argument that only a foreign sovereign or an
ambassador is entitled to diplomatic immunity or that a diplomatic agent who in
deference to the law of the receiving state insures his car, thereby engages in the
commercial activity which deprives him of the diplomatic immunity to which he is
otherwise entitled.

To say this is, not however, to deny that the rationes decidendi of the learned judge’s
ruling are a little surprising. The judge seems to have thought that at the date of the
accident there must be, what he described as “legal and conclusive proof” that the
second defendant was recognised as the First Secretary of Israel by the “paramount
ruling authority in Ghana.” Even if that were the right criterion, there was such
evidence. The second defendant swore that he had a Ghana government diplomatic
card dated 19 November 1964 and this was signed by the Principal Secretary of the
Ministry of Foreign Affairs. There was also evidence that it was endorsed in that card
that the holder was entitled to the “courtesies and privileges of a person of a diplomatic
status.” Such cards were shown to the court. One of such privileges is immunity from
the criminal, civil and administrative jurisdiction of this country: see article 31. 1. of the
Vienna Convention on Diplomatic Relations which has been enacted into law by the
Diplomatic Immunities Act, 1962 (Act 148), s. 1. No evidence was offered to the court to
contradict this.

If the evidence was susceptible of any doubt, such doubt was completely dispelled by
the official communication sent to the court by the Principal Secretary of the Ministry of
Foreign Affairs. He said the second defendant was the First Secretary of the Embassy of
Israel and he and his family were entitled to the full diplomatic privileges and the
immunities laid down by Act 148. The acceptance and recognition of persons who form
the staff of an embassy are acts of sovereignty based on the comity of nations. The one
department of State which oversees this exercise of sovereignty and is peculiarly
knowledgeable about who are diplomatic agents recognised as such by this country, is
the Ministry of Foreign Affairs. What can be more authentic than an official head of that
ministry certifying under his hand that a person sought to be impleaded before the
court was so recognised and was as such, immune from the jurisdiction of its courts?
Article 10. 1.

(a) of the Vienna Convention on Diplomatic Relations provides that:

“The Ministry for Foreign Affairs of the receiving State, or such other ministry as may
be agreed, shall be notified of:
(a) the appointment of members of the mission, their arrival and their final departure or
the termination of their functions with the mission.”
There are similar provisions with regard to member’s families and servants. Thus, that
ministry is the one department of government that can state with authority at any given
time who are and who are not recognised as diplomatic agents.

The plaintiff produced no evidence nor sought to contend that the second defendant
was not a diplomatic agent. On the contrary, she accepted him as such and sought to
bully him into waiving such immunity. The second defendant by his solicitor, answered
the plaintiff’s solicitor’s letter of 26 April 1967, inter alia, as follows.:
“Further I am instructed to inform you in the first place that as the usual practice goes
my said client cannot himself decide to waive his immunity which can only be waived by
his government. Even if he and his son could waive their immunity, they would not be
bullied into doing so.”

If the plaintiff did not regard the second defendant as a diplomatic agent and therefore
enjoying immunity, her attempt to get him waive such privilege makes no sense. The
judge considered that the relevant date at which the right to immunity must exist, is the
date the cause of action arose. He said the second defendant was not shown to have
been recognised as a diplomatic agent at the date of the accident. As a criterion by
which immunity could be claimed, the judge’s view is wrong. The relevant date is the
time jurisdiction is sought to be exercised over him.

No diplomatic agent is likely to be bothered by the fact that a person acquires a cause of
action against him in the country of his accreditation. Different considerations arise
when that cause of action is sought to be agitated against him by action. It is only then
that he can invoke his immunity. In Mighell v. Sultan of Johore [1894] 1 Q.B. 149 at pp.
159-160, C.A. Lord Esher M.R. said:
“What is the time at which he can be said to elect whether he will 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 . . . there can be no
inquiry by the Court into his conduct prior to that date. The only question is whether,
when the matter comes before the Court, and it is shewn that the defendant is an
independent sovereign, he then elects to submit to the jurisdiction.”

As far as this issue is concerned, there is no difference between a foreign sovereign, an

ambassador or any diplomatic agent. This statement of principle makes no practical
impact on this case because both at the date the cause of action arose and when he was
sought to be impleaded, there is unimpeachable evidence that the second defendant
was the First Secretary of the Embassy of Israel. But in so far as the learned judge’s
ruling suggests that diplomatic immunity cannot be claimed at the date the defendant is
sought to be impleaded unless he was recognised as a diplomat at the date the cause of
action arose, that view is wrong and ought to be disaffirmed.

As I said, there was also an official intimation to the court from the Principal Secretary
of the Ministry of Foreign Affairs to the effect that the second defendant, being the First
Secretary of the Embassy of Israel, enjoys together with his family the privileges and
immunities which the Diplomatic Immunities Act, 1962, accords to accredited
diplomatic agents. The judge refused to accord that letter any weight because, as the
judge put it, “the writer ... should herself have given evidence as to the facts stated and
subjected herself to cross-examination.” For this view, the judge cited the case of
Engelke v. Musmann [1928] A.C. 433, H.L. and implied that he derived support from
the observations of Lord Phillimore in denying any weight to that letter.

With great respect, the learned judge must have misread that learned lord’s
pronouncement on this question. The headnote in that case at p. 433 reads:
“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.”

In ordinary litigation, such a letter, in so far as it seeks to be proof of the facts stated in
it, may be shut out as offending the hearsay rule. But the basis on which such letter
from the Foreign Ministry can be acted upon was explained by Lord Phillimore at p. 451
as follows:
“When therefore the certificate from the Foreign Office was delivered by the Attorney-
General, it was not, as suggested on behalf of the plaintiff, a piece of hearsay evidence, a
mere narrative of what the Ambassador had told the Foreign Office. It was a statement of
what the Secretary of State on behalf of His Majesty had done, not what he was doing ad
hoc, or what he was believing and repeating, but what the Foreign Office had done. The
certificate is no attempt on the part of the executive to interfere with the judiciary of the
country. The status which gives the privilege has been already created by the Crown in
virtue of its prerogative in order to administer its relations with a foreign country in
accordance with international law.”

Lord Phillimore accordingly concurred in reversing the ruling of the Court of Appeal
which held that such statement must be subject to cross-examination in accordance with
the ordinary rules of evidence. Lord Buckmaster was also of the same view. He
conceived the issue in these words at pp. 440-441:
“The sole point for determination is the method by which the status of any person who
claims the benefit of this privilege is to be determined. For the appellant it is contended
that the statement of the Attorney-General on the instructions of the Foreign Office is for
this purpose conclusive, while the respondent asserts that any such dispute should be
ascertained in the ordinary way according to the usual rules of evidence.”

After considering the matter and examining a number of decided cases he arrived at the
conclusion at pp. 446-447 that:
“The privilege itself depends upon maintaining the obligations of international law and
the comity of nations. 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.”

If a statement made to the court by the Foreign Office through the Attorney-General be
conclusive, a communication sent direct to the court by that department of state must be
an a fortiori. In Suarez v. Suarez [1918] 1 Ch. 176, C.A. the Foreign Office by a letter
under the hand of an Assistant Secretary of State informed the plaintiff’s solicitors that
the defendant’s name had been removed from the Diplomatic List. It was held that that
letter was sufficient evidence of that fact. In the earlier case of Mighell v. Sultan of
Johore (supra) it was held that a letter written on behalf of the Secretary of State for the
Colonies on the ministry’s official letterhead to the effect that the defendant was an
independent sovereign power was conclusive of that fact. In that case, Wright J. who
dealt with the matter as a vacation judge, caused a communication to be made to the
Secretary of State for the Colonies in order to ascertain the status of the defendant. It
was the reply to that letter that was held to be decisive of the fact stated therein. Wills J.
who eventually dealt with the matter thought the course adopted by Wright J. was
correct. He said at p. 153:
“In the first place it is clear that the proper mode of obtaining information with respect to
the status of the defendant was adopted by Wright, J., who communicated with and
obtained a letter from the Colonial Office.”

In my opinion, there was convincing evidence that the second defendant was a
diplomatic agent and that this issue was completely clinched by the letter addressed to
the court by the Ministry of Foreign Affairs. It seems to me desirable and in accord with
the public interest that on this matter, both the executive and judiciary should speak
with one voice. I think notwithstanding the hearsay rule, the letter from the Foreign
Office was admissible on the question whether or not the second defendant was
recognised by the government as a diplomatic agent. In my judgment, the judge’s
contrary holding was erroneous. 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 that 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 the matter.

If the learned judge was in error in holding that there was no proof that the second
defendant was recognised by the government as a diplomatic agent because of what the
court conceived to be deficiency of evidence, his second reason for rejecting his claim to
diplomatic immunity is even less defensible. That reason is simply that his insurance of
the car out of deference to our Motor Vehicles (Third Party Insurance) Act, 1958,
amounts to an express waiver of his immunity to the jurisdiction. That reason drives a
coach and four through the clear provisions of article 32. 1. and 2. of the Vienna
Convention on Diplomatic Relations. By reason of section 1 of the Diplomatic
Immunities Act, 1962, that article has statutory force in this country. It provides that:
“1. The immunity from jurisdiction of diplomatic agents and of persons enjoying
immunity under Article 37 may be waived by the sending State. 2. Waiver must always
be express.”

(The emphasis is mine.)

In the context of this case, the second defendant and his family’s diplomatic immunity
could only validly be waived by the Government of Israel. This was pointed out to the
plaintiff’s counsel in the second defendant’s solicitor’s letter of 28 April 1967. It was re-
asserted by the Principal Secretary in his letter to the court dated 11 August 1967. That
letter in fact averred that no such waiver was made by the Israeli Government. To say
then that there was express waiver is to fly both in the face of the law and the fact.
Although the learned judge said the insurance of the car “amounted to an express
waiver of his immunity from the jurisdiction of the court” what he meant was in fact
that by insuring his car, the second defendant impliedly waived his immunity. This is
because at no time did the second defendant in terms say he was waiving his immunity.
According to the Shorter Oxford Dictionary (3rd ed.), at p. 658 “express” means
definitely stated, “expressed and not merely implied.” I am inclined to think it is to
avoid the implication of waiver from ambiguous conduct that article 32. 1. and 2. lays it
down that “Waiver must always be express.”
That aside, it is hardly reasonable to imply waiver, even if this were permissible, by the
simple fact of the second defendant insuring his car. There is no evidence as to what
was the precise nature of the cover taken up by the second defendant. If it was
comprehensive, his object might well be the protection of his own property and
incidentally, that of others. If it was a third party insurance, it may well be out of
deference to our Motor Vehicles (Third Party Insurance) Act, 1958. Article 41. 1. of the
Vienna Convention on Diplomatic Relations enjoins all diplomatic agents to respect the
laws of the receiving State. It enacts:

“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 .

It would indeed be strange if a diplomatic agent were to flout the laws of his host
country so as to be able to assert his immunity. The Motor Vehicles (Third Party
Insurance) Act, 1958, was passed to meet a felt social need of this country and I entirely
reject the argument that a diplomatic agent who in deference to this law insures his car,
thereby loses his diplomatic immunity. I think this is the less satisfactory of the two
reasons given by the learned judge for denying diplomatic immunity to the First
Secretary of the Embassy of Israel and his family. In my judgment, that reason is wholly
wrong. My conclusion is that all the defendants were immune from the jurisdiction of
the courts of this country and that the judge ought to have acceded to their application
and set aside the writs.

I set out earlier in this judgment the copious averments made by the plaintiff about the
fact of insurance. The second defendant’s insurers were not parties to this action. No
relief was sought nor could properly have been sought against them in this suit. The
only relief endorsed on the writ was for damages for negligence. The first defendant
was sued as the tortfeasor and the second defendant was brought in on the principle of
respondent superior. If the defendants denied negligence, the only issue would be
negligence or no negligence. If they admitted it, the issue would be what was the proper
measure of damages. The fact that any damages awarded against them may eventually
be paid by their insurers, does not make them parties or raise on the pleadings any
justiciable issue between them and the plaintiff. Indeed in those common law
jurisdictions where negligence suits are triable by a jury, the fact that the defendants are
insured is never permissible to be communicated to the jury.

As I understand it, only the second defendant could bring in the insurers under the
third party procedure with leave of the court to claim indemnity from them if he had
reason to believe that they are likely to dispute their liability to indemnify him for any
judgment that may be passed against him: see Order 16A of the High Court (Civil
Procedure) Rules, 1954 (L.N. 140A). In an action of this nature, it is clearly no business
of the plaintiff to plead the wholly irrelevant fact that the defendants were insured. If
this action had been against compellable defendants and had taken its normal course, a
judge would have been well warranted in striking out all the paragraphs referring to
insurance under rule 29 of Order 19 of the High Court (Civil Procedure) Rules, on the
ground that such pleadings tend “to prejudice, embarrass, or delay the fair trial of the
action.” And it is this irrelevant pleading that misled the judge into holding that the
second defendant had waived his diplomatic immunity.

In view of what I said in the foregoing paragraphs of this judgment, the judge ought to
have acceded to the application of the defendants and struck out the suit for want of
jurisdiction. As he held otherwise, I think his ruling was wrong and ought to be
reversed.

JUDGMENT OF SOWAH J.A.

I agree.

JUDGMENT OF FRANCOIS J.A.

I also entirely agree.