In the President of The Commission of The Economic Community of West African States V. Babacar Ndiaye – Appeal No. CA/A/173/2020, the Court of Appeal restated that a State enjoys immunity from the jurisdiction of municipal courts, in respect of itself, and its persons.

BACKGROUND

The Respondent, a staff of the Economic Community of West African States (ECOWAS), instituted an action against the President of ECOWAS (the “Appellant”) at the National Industrial Court of Nigeria, Abuja Judicial Division (the “Lower Court”). The Respondent’s claims against the Appellant were centered on his suspension from the employ of ECOWAS. The Respondent alleged that his suspension by the Appellant, was in clear violation of the ECOWAS Staff Regulation and sought declaratory orders and monetary reliefs against the Appellant.

The Appellant argued that he enjoyed immunity from legal suits, and, on this basis, challenged the Lower Court’s jurisdiction to hear and determine the suit.

In the Ruling of 6 February, 2020, the Lower Court found that the provision of Section 12 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was inapplicable to the issues covered by Section 254C (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Lower Court consequently held that it had jurisdiction to hear and determine the suit and accordingly dismissed the Preliminary Objection of the Appellant. Dissatisfied with the Ruling of the Lower Court, the Appellant appealed to the Court of Appeal.

On appeal to the Court of Appeal, the Appellant argued that the Lower Court misapplied the provisions of Section 254C (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 14(A), Rule 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (the “NICN Rules”).

The Appellant submitted that a literal interpretation of Section 254C (2) of the Constitution and Order 14(A), Rule 1(1) of the NICN Rules disclosed that the jurisdiction of the Lower Court pertained to international convention, treaty or protocol relating to labour, employment, workplace, industrial relations or matters connected therewith. The Appellant further argued that the ECOWAS Treaty was not labour specific because it was not ratified by Nigeria for the purpose of labour, employment, workplace, industrial relations or matters connected therewith. On the basis of the above submissions, the Appellant contended that the Lower Court was wrong in assuming jurisdiction over the Appellant upon the faulty interpretation accorded to Section 254C (2) of the Constitution and Order 14(A), Rule 1(1) of the NICN Rules.

In addition, the Appellant argued the Lower Court failed to take cognizance of the fact that the Appellant who enjoys immunity from law suits by virtue of Section 18 of the Diplomatic Immunities and Privileges Act, CAP D9 LFN 2004, could not be impleaded before it.

Whereas, the Respondent argued that the Appellant failed to furnish the Lower Court with proof of ratification of the ECOWAS Treaty and that the Lower Court was right to assume jurisdiction pursuant to the provisions of Order 14(A), Rule 1(1) of the NICN Rules.

In reaction to the Respondent’s submission on the issue of immunity, the Appellant argued that the Certificate (Exhibit CA) issued by the Minister of Foreign Affairs of Nigeria, in accordance with Section 18 of the Diplomatic Immunities and Privileges Act was conclusive evidence of the status of ECOWAS as an International Organisation and also confirmed that the Appellant had immunity from the suit.

DECISION OF THE COURT OF APPEAL

The Court of Appeal considered Section 254C (2) of the Constitution, Order 14(A), Rule 1(1) of the NICN Rules, Section 18 of the Diplomatic Immunities and Privileges Act, and found that:

  • the Certificate of the Minister of Foreign Affairs of Nigeria was sufficient and in fact conclusive evidence of immunity claimed by the Appellant;
  • the statement of the Minister in paragraph 2 of the Certificate that “ECOWAS Revised Treaty of 1993 was ratified by the Federal Republic of Nigeria on 1st July, 1994,” put paid to the trial judge’s contention that the Appellant needed to prove that the said treaty was ratified by Nigeria for him to properly claim immunity;
  • Section 254C (2) of the Constitution only conferred on the National Industrial Court, power to apply international conventions, protocols and treaties ratified by Nigeria relating to labour, employment, workplace, industrial relations and matters connected therewith, while exercising its jurisdiction over persons subject to its jurisdiction;
  • Section 254C (2) of Constitution does not by any means have the effect of conferring jurisdiction on the National Industrial Court over diplomats; and
  • the authority of African Reinsurance Corporation v. Abate Fantaye (1986) 3 NWLR (Pt. 32) 811, put to rest the issue of immunity from proceedings in municipal courts enjoyed by persons like the Appellant.

COMMENT

Immunity and privilege enjoyed by an officer of an International Organisation is protected and recognised in Nigeria and accordingly no municipal court can assume jurisdiction to commence legal proceedings against a person that enjoys diplomatic immunity in Nigeria.

This decision is a welcome addition to our legal precedent, as it accords and confirms Customary International Law, that a sovereign state cannot be sued in the courts of another sovereign state in any legal proceedings either against its persons or for the recovery of specific property or damages.

 

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