Armon v Katz
| Jurisdiction | Ghana |
| Date | 05 April 1976 |
| Court | Court of Appeal (Ghana) |
(Apaloo, Sowah and Francois JJ.A)
Diplomatic and consular intercourse and privileges Permanent diplomatic envoys Privileges and immunities of Diplomatic envoys The families of diplomatic envoys Relevant date on which the right to immunity must exist Communication of the Executive as to whether a person is a diplomatic envoy or not Whether conclusive Admissibility in evidence of the communication Whether inadmissible as hearsay Waiver of immunity Whether diplomatic envoy competent to waive immunity Insurance of car by diplomatic envoy Whether a commercial activity depriving him of immunity Whether amounting to waiver of immunity The law of Ghana
Summary: The facts:The respondent sued the appellants for damages arising out of the alleged negligent driving by the first appellant of a car belonging to the second appellant, the first appellant's father. The second appellant was the First Secretary of the Israeli Embassy. The appellants claimed diplomatic immunity. The Principal Secretary, Ministry of Foreign Affairs, addressed a communication to the Court supporting the claim of immunity. The car was insured in respect of injuries to third parties. The respondent contended inter alia that the insurance amounted to a waiver of the immunity. A question also arose whether it was necessary to establish a right to immunity on the date of the accrual of the cause of action.
Held:(1) The relevant date for considering whether there was a right to immunity was the date when jurisdiction was sought to be exercised over the diplomatic agent.
(2) The communication of the Ministry of Foreign Affairs was conclusive as to the diplomatic status of the appellant.
(3) The appellants were entitled to diplomatic immunity.
(4) The immunity could only be waived by the State of Israel and not by the appellants.
(5) The insurance of the car did not amount to a waiver of immunity as contemplated by the Vienna Convention on Diplomatic Relations and otherwise.
The following is the text of the judgment of the Court:
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 he could contact the said insurance company, he 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...
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