(COURT OF APPEAL)

FAHIMA GALDAS v. EDUCATIONAL MISSION U.A.R.

AC-REV-606-1969

AC-REV-608-1969

Principles

  Civil Procedure—Diplomatic immunity—Appearance for raising objection to jurisdiction does not amount to submission to jurisdiction

  Civil Procedure—Diplomatic immunity—Courts should seek information from the Ministry of Foreign Affairs—Answer is final and conclusive

(i) A foreign sovereign does not submit to jurisdiction by appearance in court and raising objection as to jurisdiction.

(ii) The courts should seek information as to the enjoyment of diplomatic immunities from the Ministry of Foreign Affairs. The answer the courts get from the Ministry is final and conclusive.

Advocates: M. A. Hassib ……………………………………… for the applicant

Dr. Ogeil and Mallassi …………………………………………. for the respondents

Judgment

Dafalla El Radi Siddig J. July 22, 1970:—Applicant Sued the U.A.R. Educational Mission for the recovery of £S.307.981m/ms. after leaving their service as a schoolmistress. A subpoena has been served on respondents and having failed to appear an ex parte decree had been passed against them. On August 16, 1966, respondents’ counsel filed an application in which he pleaded inter alia that respondents are diplomatically immune. The learned District Judge decided the preliminary issue vis-â vis the jurisdiction of his court in favour of respondents and thereby non-suited applicant. His Honor the Province Judge set aside the dismissal order of the suit and remitted the papers for trying an issue which he framed. Hence this revision is brought before us.

It is contended for applicant that respondents submitted to the jurisdiction of the court by appearing and hence waived their diplomatic immunity. It is stated for respondents in reply that what had taken place does not amount to submission to the court’s jurisdiction. I need not linger much on the point. It is my view that what occurred does not amount to the sort of behavior that warrants the conclusion that respondents submitted themselves to the territorial jurisdiction of our courts. Mere appearance to contest jurisdiction does not amount to surrender to the jurisdiction. It is obvious that the foreign sovereign has to appear at some stage or another to raise a voice of objection vis-à-vis jurisdiction. Indeed as I can see things, refraining from appearance altogether, though amounting to objection by conduct, is not in conformity with good taste; nor with the vulnerableness and courtesy— which standards provide the basis for interaction amongst the comity of civilized nations.

To quote Lord Sumner in Duff Development Co. v. Government of Kelantan [1924] A.C. 797 at 822 he said:

“The principle is well settled that a foreign sovereign is not liable to be impleaded in the municipal courts of this country, but is subject to their jurisdiction only when he submits to it, whether by invoking it as a plaintiff or by appearing as a defendant without objection.”

It is apparently clear that appearance for raising objection as to the jurisdiction does not amount to submission to jurisdiction, a matter which I fully approve.

The assertion is made for applicant that the question of immunity ought to be resolved by judicial notice rather than by the ordinary mode of proof and that the court may seek the aid of the Ministry of Foreign Affairs if it deems it necessary. The learned counsel for respondents advocates the reverse viewpoint. The contention for applicant finds a lot of support in English authorities. To quote only a few, Duff’s case, supra, and Mighell v. Sultan of Johore [1894] 1 Q.B. 158 may be illustrative. It had been said in the latter case:

“When once there is the authoritative certificate of the Queen through her Minister of State as to the status of another sovereign, that is decisive of the matter in the courts of this country.”

It has been said that the rationale for diplomatic immunity is not based on status or dignity of individuals, but rather with the element of functional independence necessary to free these institutions from national control. The lengthy argument usually devoted by authorities on conflict of laws with regard to commercial ships and business institutions seems to warrant the broad conclusion that not every institution forming part of the organ of a foreign sovereign is afforded diplomatic immunity automatically. If my presumption and conclusion be right this takes us to the argument of His Honor the Province Judge, based on reciprocity, which is his premise of remitting papers to decide an issue based upon it. It is stated for respondents that reciprocity is

governed by treaties.

With due deference, I venture to express that I am in disagreement with the way His Honor the Province Judge formulated the issue. He tends to forget that the controversy is between two specific parties. The answer to the question in the way it is put can only lead to a sweeping generalization. General principles rather than a universal and homogeneous rule as to who is afforded diplomatic immunity can be inferred from the interactions of nations in this field. To put it in other words, for instance the treatment in the U.A.R. of institutions similar to the one at issue, and belonging to sovereigns foreign to it, may differ. No rule of thumb may be there as such matters are usually governed by unilateral rather than by multilateral treaties. It is the individual relation which we should look for and not the treatment of institutions belonging to countries other than ours. Reciprocity itself is a concept that varies according to the standards a particular sovereign chooses to treat other sovereigns with and hence to be treated according to. To do unto others as we like to be done with is a variable, and is based on different concepts and dictated by the different interests of nations and their various objectives.

On the one hand it is true that the sovereignty of a certain country may be beyond controversy while on the other that does not mean automatic immunity is afforded to all the institutions forming part of such a sovereign. Ships, consuls and commercial institutions may suffice as examples of the latter part of my contention. It is obvious that the question of recognition and immunity are part of the political question doctrine. Thus who is immune and why are questions for the authoritative political decision-maker and hence outside our province qua courts of law. If my contention be true the wisdom behind seeking information from the Ministry of Foreign Affairs becomes apparent.

In my judgment, as courts we should keep away as far as possible from being involved in matters that lead into the intricacies of the political question doctrine.

Ergo, it is my holding that the controversy before us should be resolved by a certificate from the Ministry of Foreign Affairs.

No order as to costs.

Tawfik Abdel Mageed 1. August 5, 1970:—I agree.

The court of first instance should seek information from the Ministry of Foreign Affairs on whether the U.A.R.’s Educational Mission enjoys diplomatic immunities and privileges which keep her out of the jurisdiction of our Sudanese courts. The answer the court gets is final and conclusive. The court of first instance is therefore precluded from receiving any evidence to contradict such information.

However, this does not at all mean that a foreign sovereign cannot waive its immunities and privileges: it can do so, and thereby it submits to the jurisdiction of our courts. Such waiver, nevertheless, will also be inferred from its involvement in a suit as plaintiff or from its appearance as defendant without objection. No conclusion of waiver can be arrived at from the appearance of such foreign sovereign before a court for the sole purpose of putting forward objection.