TORRETON vs. DIEZ [1993]DLCA5105

Date	1993-12-09
Suit No.	[1992 – 1993] 4 G B R 1578 - 1586 C.A
Citation No.	[1993]DLCA5105

LAMPTEY JA

AMUAH JA

FORSTER JA

OKUDZETO (WITH HIM AMEGATCHER AND DUNCAN (MRS)) FOR APPELLANT.

[1993]DLCA5105
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													<main id="main" class="content" style="min-height: 60rem" >TORRETON<o:p></o:p>vs.<o:p></o:p>DIEZ<o:p></o:p>[COURT
OF APPEAL]<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">

[1992 – 1993] 4 G B R 1578 -&nbsp; 1586 C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 9 DECEMBER 1993<o:p></o:p>

</div>COUNSEL:<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">

OKUDZETO
(WITH HIM AMEGATCHER AND DUNCAN (MRS)) FOR APPELLANT.<o:p></o:p>

</div>CORAM:<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">

LAMPTEY
JA, AMUAH JA, FORSTER JA<o:p></o:p>

</div>FORSTER JA. <o:p></o:p>The
plaintiff-respondent (hereinafter called the ‘plaintiff’) was the Chancellor of
the Spanish Embassy until November 1987, when he left Ghana. The
defendant-appellant (hereinafter called the ‘defendant’) was also a diplomat at
the embassy in 1987. He was promoted in 1988 to the rank of Chancellor and left
Ghana in 1990 when his tour ended.<o:p></o:p>On
22/11/89, the plaintiff per his lawful attorney, Bagnel Tena-Urrutia, issued a
writ of summons against the defendant in the High Court, Accra. Endorsed on the
writ were the following claims:<o:p></o:p>“1. The sum of 20,000 dollars being
money due and owed by the defendant to the plaintiff in respect of household
items and a vehicle&nbsp; purchased&nbsp;&nbsp; by&nbsp;&nbsp;
the&nbsp;&nbsp; defendant&nbsp;&nbsp; from&nbsp;&nbsp;
the&nbsp;&nbsp; plaintiff&nbsp;&nbsp; and presently being used by the defendant.<o:p></o:p>2. Interest on the claimed amount at
the prevailing commercial rate of interest commencing from the date of issue of
plaintiff’s writ of summons commencing action till date of judgment.”<o:p></o:p>The
defendant entered conditional appearance on 4 December 1989. On 8 December
1989, the defendant sought to move the court to set aside the service of the
writ of summons and statement of claim. In a supporting affidavit, the main
averment relevant to the motion was that the defendant, as Chancellor of the
Embassy of the Kingdom of Spain in Accra, was protected by diplomatic privilege
or immunity and was not therefore amenable to the jurisdiction of the courts of
Ghana.<o:p></o:p>In
the course of the proceedings, the Ministry of Foreign Affairs certified in a
letter dated 2 February 1990 to the Chief Registrar of the High Court that the
defendant, Jose M A Torreton “has diplomatic status.” In another letter
addressed to the solicitors of the defendant and dated 30 April 1991, the
Ministry of Foreign Affairs confirmed that the defendant was a member of the
diplomatic staff of the Embassy of Spain from 1987-1990 and had diplomatic
ranking. It was further certified that:<o:p></o:p>“(d) Mr Torreton’s status as a
Diplomatic Agent for the period of his tour entitled him to enjoy immunity from
the civil and administrative jurisdiction of the courts of Ghana subject to the
provisions of article 31(1)(a), (b), (c) of the Vienna Convention on Diplomatic
Relations (1961).”<o:p></o:p>This
second letter from the Ministry of Foreign Affairs was tendered in the
subsequent proceedings. On 24 October 1991, the motion was argued before Her
Lordship G T Lutterodt. The main issues were:<o:p></o:p>“(a) whether the defendant was
protected by diplomatic immunity;<o:p></o:p>(b) whether, if so protected, the defendant
lost that immunity because he had in the present case engaged in a commercial
activity outside his official functions.”<o:p></o:p>The
trial judge, in her judgment dated 18 November 1991 relied on Armon v Katz
[1976] 2 GLR 115 and rightly held that:<o:p></o:p>“In the instant case exhibit 1 is
conclusive evidence of the full diplomatic status of the applicant and we need
not determine the issue of his status by the known and ordinary mode of
determining issues of fact, that is to say in accordance with the rules of evidence.”<o:p></o:p>That
finding of the conclusiveness of the certificate or statement of the Ministry
of Foreign Affairs as to the status of the diplomatic agent is the product of
the society of nations and a fundamental principle of Public International Law.
For as was said by Lord Buckmaster in Engelke v Mussmann [1928] AC 433 at&nbsp; 446.<o:p></o:p>“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.”<o:p></o:p>And
see also Duff Development Co v Kelantan Government [1924] AC 797, Re Suarez
[1918] 1 Ch 176.<o:p></o:p>The
second ambit of the matter was whether the purchase of the plaintiff’s vehicle
and personal effects by the defendant constituted “commercial activity” and for
“private profit” and thereby divested himself of his diplomatic immunity as
conferred by article 31 of the Diplomatic Immunities Act 1962 (Act 148). That
Act incorporated the provisions of the Vienna Convention on Diplomatic Relations.
On this issue the trial judge said that to be able to resolve that matter she
must first ascertain the proper law of contract. She then concluded:<o:p></o:p>“I am in no position by looking at the
statement of claim and some other facts (some of which are disputed and are
contrary to what the plaintiff has pleaded are in issue and so can only be
determined by evidence) stated in an affidavit to determine what is the proper
law of the contract. I think the proper thing to do in this case is to dismiss
the motion and allow the case to proceed to trial. The defendant is at liberty
to raise these matters he has raised and call for the dismissal of the suit at
the</main>