GARCIA vs. TORREJOH [1991]DLHC2017

Date	1991-11-18
Suit No.
Citation No.	[1991]DLHC2017

LUTTERODT J.

N.A.O. AMEGATCHER FOR THE DEFENDANT-APPLICANT.

K. BROOKMAN-AMISSAH FOR THE PLAINTIFF-RESPONDENT.

[1991]DLHC2017
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">GARCIA<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">TORREJOH<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1992] 1 GLR 143<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 18
NOVEMBER 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>N.A.O. AMEGATCHER FOR THE DEFENDANT-APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

K. BROOKMAN-AMISSAH FOR THE PLAINTIFF-RESPONDENT. <o:p></o:p>

</div>JUDGMENT OF LUTTERODT J.<o:p></o:p>On 22 November 1989 the plaintiff-respondent (hereinafter referred
to as the respondent) per his lawful attorney, Raguel Tena-Urutia, issued this
writ against the defendant-applicant (hereinafter referred to as the applicant)
for the sum of $20,000 and interest on that amount. After entering a
conditional appearance, the applicant now prays for (1) an order setting aside
the service of the writ of summons and statement of claim; and (2) an order
dismissing the said action.<o:p></o:p>The main grounds upon which this instant application, brought
under Order 12, r. 24 of the High Court (Civil Procedure) Rules, 1954 (L.N.
140A), is founded is contained in paragraphs (13) and (14) of the supporting
affidavit. These are that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(13) The defendant being at the time of the issue of the writ a
member of the diplomatic corps, is under the provisions of the Vienna
Convention immune from the jurisdiction of our courts. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(14) Since the contract was made not in Ghana, but in Spain, this
court is not seised with jurisdiction to determine this dispute.”<o:p></o:p>The first issue I have been asked to determine, and in favour of
the applicant, is that he is indeed an accredited diplomat. I think this issue
arose as a result of paragraph (6) of the respondent’s affidavit in opposition.
When the applicant deposed in his affidavit paragraphs (1) and (2) that he is
the Chancellor of the Embassy of the Kingdom of Spain and further that he is an
accredited diplomat, the respondent’s reaction was that he was “not in a
position to admit or deny paragraphs (1) and (2) of the affidavit in support of
the application and shall put the applicant to strict proof of the averments
therein.”<o:p></o:p>I would, however, have no difficulty in arriving at the conclusion
that the applicant is an accredited diplomat. Exhibit 1 tendered by the
applicant at the hearing confirms the full diplomatic status of the applicant
both when he was an administrative officer and when he was promoted to the rank
of Chancellor of the Embassy.<o:p></o:p>In order to disabuse the mind of this court or for that matter any
other inquirer as to whether or not a mere written letter sent under the hand
of an officer of our foreign ministry is sufficient proof of the applicant’s
diplomatic status, his counsel has urged that we examine the case of Armon v.
Katz [1976] 2 G.L.R. 115 at 122-123, C.A. and we shall come to no other
conclusion.<o:p></o:p>In that case, an action for damages was instituted against the
first defendant, a son of the second defendant, First Secretary of the Israeli
Embassy in Accra. The defendants, like the applicant in this instant case,
entered conditional appearance and applied subsequently for an order to set
aside service on them of the writ of summons for want of jurisdiction on the
ground of diplomatic immunity.<o:p></o:p>In the course of the proceedings, the Principal Secretary of the
Ministry of Foreign Affairs wrote to the court informing it that the second
defendant and his family were entitled to full diplomatic privileges and
immunities as laid down by the Vienna Convention. The trial judge refused the
application on the grounds, among others, that the letter was no conclusive
proof of the second defendant’s status and that the author ought to have been
cross-examined on the letter. On appeal, the court relying on Engelke v.
Musmann [1928] A.C. 433, H.L. (a case which was incidentally relied on by the
trial judge); Suarez v. Suarez [1918] Ch. 176 and Mighell v. Sultan of Johore
[1894] 1 Q.B. 149, C.A. concluded that such written letters were sufficient
evidence of the facts contained therein. It was thus held by the three learned
justices as stated in the headnote at 116 that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Notwithstanding the hearsay rule, the letter from the Ministry of
Foreign Affairs was admissible and conclusive on the question whether or not
the second defendant had been recognised by the government as a diplomatic
agent immune from the court’s jurisdiction . . .”<o:p></o:p>