ARMON AND ANOTHER v.

KATZ
[1976] 2 GLR 115

Division: COURT OF APPEAL, ACCRA

Date: 5 APRIL 1976
Before: APALOO, SOWAH AND FRANCOIS JJ.A.

International law—Diplomatic privilege—Immunity from judicial process—Proper time for claiming

right to diplomatic immunity—Whether dependent on date cause of action arose or time jurisdiction was
sought to be exercised.

International law—Diplomatic privilege—Immunity from judicial process—Proof of status of person

claiming privilege—First Secretary of Israeli Embassy and son sued for negligence— Objection to
jurisdiction on grounds of diplomatic immunity raised—Letter from Principal Secretary Ministry of
Foreign Affairs as to extent of privilege—Whether letter conclusive.

International law—Diplomatic privilege—Waiver—Embassy official insuring car under Motor Vehicles

(Third Party Insurance) Act, 1958—Whether act of insurance constituting express waiver of diplomatic
immunity—Proper mode for waiving diplomatic immunity—Motor Vehicles (Third Party Insurance) Act,
1958 (No. 42 of 1958)—Diplomatic Immunities Act, 1962 (Act 148), Sched., art. 32. 1. and 2.

Practice and procedure—Pleadings—Striking out—Action against insured in running down

case—Plaintiff’s pleading containing averment of defendant being insured—Insurers not parties to
action—Averment of fact of defendant being insured wholly irrelevant—Irrelevant averment misleading
judge in adjudicating issue—Discretion of judge to strike out averment—High Court (Civil Procedure)
Rules, 1954 (L.N. 140A), Order 19, r. 29.

HEADNOTES
The plaintiff, a minor, sustained serious injuries in a motor accident involving a car negligently driven by
the first defendant and owned by his father, the second defendant, the First Secretary of the Israeli
Embassy in Accra. The plaintiff

[p.116] of [1976] 2 GLR 115

therefore sued per her next friend, her mother, for damages for negligence and in her pleadings averred
that the second defendant’s vehicle had been insured under the Motor Vehicles (Third Party Insurance)
Act, 1958 (No. 42 of 1958). The defendants entered conditional appearance and subsequently applied to
the High Court for an order to set aside service on them of the writ of summons for want of jurisdiction
on grounds of diplomatic immunity. By his affidavit, the second defendant deposed that he possessed a
Ghana Government diplomatic card issued on 19 November 1964 and signed by the Principal Secretary
of the Ministry of Foreign Affairs to the effect that he, the second defendant, was entitled to the
“courtesies and privileges of a person of a diplomatic status.” In the course of the proceedings, the trial
court received a letter from the Principal Secretary of the Ministry of Foreign Affairs to the effect that the
second defendant (as the First Secretary of the Israeli Embassy) and his family were entitled to full
diplomatic privileges and immunities as laid down by the Vienna Convention scheduled to the Diplomatic
Immunities Act, 1962 (Act 148). The trial judge refused to set aside the service of the writs on the
grounds that: (a) there was no proof that at the date of the accident, the second defendant had been
recognised by the government as the First Secretary of the Israeli Embassy and that the letter from the
Principal Secretary of the Ministry of Foreign Affairs was not conclusive and the writer of that letter must
be subjected to cross-examination and (b) by insuring the car pursuant to the Motor Vehicles (Third Party
Insurance) Act, 1958, the second defendant had expressly waived any privilege or immunity from
jurisdiction he might have had. On appeal,
Held, allowing the appeal:
(1) the relevant date at which the second defendant’s right to immunity from the court’s jurisdiction
must exist, was not the date the cause of action arose (as erroneously held by the trial judge) but the
time jurisdiction was sought to be exercised over him. Dictum of Lord Esher M.R. in Mighell v.
Sultan of Johore [1894] 1 Q.B. 149 at pp. 159-160, C.A. applied.
(2) 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 and therefore the trial
judge’s contrary holding was erroneous. Dicta of Wills J. in Mighell v. Sultan of Johore (supra) at
p. 153; of Lord Buckmaster and Lord Phillimore in Engelke v. Musmann [1928] A.C. 433 at pp.
440-441, 446-447 and 451, H.L. respectively and Suarez v. Suarez [1918] 1 Ch. 176, C.A. applied.
(3) The trial judge had erred in holding that by insuring his car in deference to the Motor Vehicles
(Third Party Insurance) Act, 1958, the second defendant had thereby expressly waived his
diplomatic immunity; such a waiver could only validly be made by the Israeli Government under
article 32. 1. and 2. of the Vienna Convention scheduled to the Diplomatic Immunities Act, 1962
(Act 148).
(4) In an action against an insured in a running down case, it was no business of the plaintiff to plead
the wholly irrelevant fact that the defendant was insured. The fact that any damages awarded
against the defendant might eventually be paid by the insurers did not make them parties or could
raise on the pleadings any justiciable issue between them and the plaintiff. In the instant case, if the
action had been against compellable defendants and had taken its normal course, a judge would
have been well warranted in striking out all the paragraphs referring to insurance under L.N. 140A,
Order 19, r. 29. It was the irrelevant pleading that misled the

[p.117] of [1976] 2 GLR 115

judge into holding that the second defendant had waived his diplomatic immunity.
Decision of Anterkyi J. sub nom. Katz v. Armon, High Court, Accra, 20 October 1967, unreported;
digested in (1968) C.C. 10 reversed.

CASES REFERRED TO
(1) Mighell v. Johore (Sultan of) [1894] 1 Q.B. 149; 63 L.J.Q.B.593; 70 L.T. 64; 58 J.P. 244, 10
T.L.R. 115; 9 R. 447, C.A.
(2) Engelke v. Musmann [1928] A.C. 433; 97 L.J.K.B. 789; 139 L.T.589; 44 T.L.R. 731, H.L.
(3) Suarez v. Suarez [1918] 1 Ch. 176; 87 L.J.Ch. 173; 118 L.T. 279; 34 T.L.R. 127; 62 S.J. 158, C.A.
NATURE OF PROCEEDINGS
APPEAL from the decision of the High Court refusing to set aside the service on the appellants of a writ
of summons for want of jurisdiction on the grounds of diplomatic immunity. The facts are sufficiently
stated in the judgment of Apaloo J.A.

COUNSEL
R. Korsah for the appellants.
No appearance by or on behalf of the respondents.

JUDGMENT OF 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 ...

[p.118] of [1976] 2 GLR 115

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 she could contact the said insurance company, she 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 the satisfaction of any damages that may be awarded against the first defendant.”

On 1 June 1967, the defendants moved the court to set aside the service on them of the writ of summons.
They claimed that they were diplomatic agents of the State of Israel and were, as such, not amenable to
the jurisdiction of the court. There was evidence that the second defendant was the First Secretary of the
Embassy of Israel, the infant defendant was his son and his guardian ad litem was the wife of the second
defendant. This application was resisted on a number of grounds. In so far as it is possible to determine
the grounds of objection from the judge’s notes they are that: (1) though ambassadors and foreign
sovereigns enjoy full diplomatic immunity, officials of the embassy do not; (2) inasmuch as the second
defendant engaged in commercial activity, article 31 of the Vienna Convention on Diplomatic Relations
precludes him from relying on

[p.119] of [1976] 2 GLR 115

diplomatic immunity and (3) as the wrong on which the action was founded fell outside the official duties
of the second defendant, he could not shield himself under the cloak of diplomatic immunity.
The learned judge, Anterkyi J. (in his ruling delivered on 20 October 1967, unreported; digested in (1968)
C.C. 10) refused to set aside the service of the writ on two grounds, namely, first, there was no “legal or
conclusive proof” that at the date of the accident, the second defendant had been recognised as the First
Secretary of the Embassy of Israel by the “paramount ruling authority in Ghana,” and secondly, that by
taking a policy of insurance pursuant to the Motor Vehicles (Third Party Insurance) Act, 1958, the second
defendant had expressly waived any privilege or immunity from jurisdiction he might have had. One of
the grounds urged by counsel for the plaintiff for denying diplomatic immunity to the second defendant
was that the insurance company with which the latter insured, was a commercial organisation and by
entering into a contract of insurance with that organisation, the second defendant had engaged in a
commercial activity outside his official functions and article 31. 1. (c) of the Vienna Convention debars
him from claiming immunity from the jurisdiction of the court. The learned judge expressly rejected that
wholly untenable contention but the fact that it was made, reflects the quality of the legal argument
advanced on behalf of the plaintiff.
The defendants invite us to upset the ruling on the ground: (1) that there was conclusive evidence before
the court that the second defendant was a diplomatic agent and was accordingly immune from the
jurisdiction of the court, and (2) that the judge was in error in holding that by insuring the car in
obedience to the municipal law of this country, he had waived his diplomatic immunity. It is to the credit
of the judge that although his conclusion favoured the plaintiff, he did not found his ruling on the grounds
urged by counsel for the plaintiff. One does not require a profound knowledge of public international law
to reject the argument that only a foreign sovereign or an ambassador is entitled to diplomatic immunity
or that a diplomatic agent who in deference to the law of the receiving state insures his car, thereby
engages in the commercial activity which deprives him of the diplomatic immunity to which he is
otherwise entitled.
To say this is, not however, to deny that the rationes decidendi of the learned judge’s ruling are a little
surprising. The judge seems to have thought that at the date of the accident there must be, what he
described as “legal and conclusive proof” that the second defendant was recognised as the First Secretary
of Israel by the “paramount ruling authority in Ghana.” Even if that were the right criterion, there was
such evidence. The second defendant swore that he had a Ghana government diplomatic card dated 19
November 1964 and this was signed by the Principal Secretary of the Ministry of Foreign Affairs. There
was also evidence that it was endorsed in that card that the holder was entitled to the “courtesies and
privileges of a person of a diplomatic status.” Such cards were shown to the court. One of such privileges
is immunity from the criminal, civil

[p.120] of [1976] 2 GLR 115

and administrative jurisdiction of this country: see article 31. 1. of the Vienna Convention on Diplomatic
Relations which has been enacted into law by the Diplomatic Immunities Act, 1962 (Act 148), s. 1. No
evidence was offered to the court to contradict this.
If the evidence was susceptible of any doubt, such doubt was completely dispelled by the official
communication sent to the court by the Principal Secretary of the Ministry of Foreign Affairs. He said the
second defendant was the First Secretary of the Embassy of Israel and he and his family were entitled to
the full diplomatic privileges and the immunities laid down by Act 148. The acceptance and recognition
of persons who form the staff of an embassy are acts of sovereignty based on the comity of nations. The
one department of State which oversees this exercise of sovereignty and is peculiarly knowledgeable
about who are diplomatic agents recognised as such by this country, is the Ministry of Foreign Affairs.
What can be more authentic than an official head of that ministry certifying under his hand that a person
sought to be impleaded before the court was so recognised and was as such, immune from the jurisdiction
of its courts? Article 10. 1.
(a) of the Vienna Convention on Diplomatic Relations provides that:
“The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be
notified of:
(a) the appointment of members of the mission, their arrival and their final departure or the termination of
their functions with the mission.”

There are similar provisions with regard to member’s families and servants. Thus, that ministry is the one
department of government that can state with authority at any given time who are and who are not
recognised as diplomatic agents.
The plaintiff produced no evidence nor sought to contend that the second defendant was not a diplomatic
agent. On the contrary, she accepted him as such and sought to bully him into waiving such immunity.
The second defendant by his solicitor, answered the plaintiff’s solicitor’s letter of 26 April 1967, inter
alia, as follows.:
“Further I am instructed to inform you in the first place that as the usual practice goes my said client cannot
himself decide to waive his immunity which can only be waived by his government. Even if he and his son
could waive their immunity, they would not be bullied into doing so.”

If the plaintiff did not regard the second defendant as a diplomatic agent and therefore enjoying
immunity, her attempt to get him waive such privilege makes no sense. The judge considered that the
relevant date at which the right to immunity must exist, is the date the cause of action arose. He said the
second defendant was not shown to have been recognised as a diplomatic agent at the date of the accident.
As a criterion by which immunity could be claimed, the judge’s view is wrong. The relevant date is the
time jurisdiction is sought to be exercised over him.

[p.121] of [1976] 2 GLR 115

No diplomatic agent is likely to be bothered by the fact that a person acquires a cause of action against
him in the country of his accreditation. Different considerations arise when that cause of action is sought
to be agitated against him by action. It is only then that he can invoke his immunity. In Mighell v. Sultan
of Johore [1894] 1 Q.B. 149 at pp. 159-160, C.A. Lord Esher M.R. said:
“What is the time at which he can be said to elect whether he will submit to the jurisdiction? Obviously, as it
appears to me, it is when the Court is about or is being asked to exercise jurisdiction over him, and not any
previous time . . . there can be no inquiry by the Court into his conduct prior to that date. The only question
is whether, when the matter comes before the Court, and it is shewn that the defendant is an independent
sovereign, he then elects to submit to the jurisdiction.”

As far as this issue is concerned, there is no difference between a foreign sovereign, an ambassador or any
diplomatic agent. This statement of principle makes no practical impact on this case because both at the
date the cause of action arose and when he was sought to be impleaded, there is unimpeachable evidence
that the second defendant was the First Secretary of the Embassy of Israel. But in so far as the learned
judge’s ruling suggests that diplomatic immunity cannot be claimed at the date the defendant is sought to
be impleaded unless he was recognised as a diplomat at the date the cause of action arose, that view is
wrong and ought to be disaffirmed.
As I said, there was also an official intimation to the court from the Principal Secretary of the Ministry of
Foreign Affairs to the effect that the second defendant, being the First Secretary of the Embassy of Israel,
enjoys together with his family the privileges and immunities which the Diplomatic Immunities Act,
1962, accords to accredited diplomatic agents. The judge refused to accord that letter any weight because,
as the judge put it, “the writer ... should herself have given evidence as to the facts stated and subjected
herself to cross-examination.” For this view, the judge cited the case of Engelke v. Musmann [1928] A.C.
433, H.L. and implied that he derived support from the observations of Lord Phillimore in denying any
weight to that letter.
With great respect, the learned judge must have misread that learned lord’s pronouncement on this
question. The headnote in that case at p. 433 reads:
“A statement made to the Court by the Attorney-General on the instructions of the Foreign Office as to the
status of a person claiming immunity from judicial process on the ground of diplomatic privilege, whether as
ambassador or as a member of the ambassador’s staff, is conclusive.”

In ordinary litigation, such a letter, in so far as it seeks to be proof of the facts stated in it, may be shut out
as offending the hearsay rule. But

[p.122] of [1976] 2 GLR 115

the basis on which such letter from the Foreign Ministry can be acted upon was explained by Lord
Phillimore at p. 451 as follows:
“When therefore the certificate from the Foreign Office was delivered by the Attorney-General, it was not, as
suggested on behalf of the plaintiff, a piece of hearsay evidence, a mere narrative of what the Ambassador
had told the Foreign Office. It was a statement of what the Secretary of State on behalf of His Majesty had
done, not what he was doing ad hoc, or what he was believing and repeating, but what the Foreign Office
had done. The certificate is no attempt on the part of the executive to interfere with the judiciary of the
country. The status which gives the privilege has been already created by the Crown in virtue of its
prerogative in order to administer its relations with a foreign country in accordance with international law.”
Lord Phillimore accordingly concurred in reversing the ruling of the Court of Appeal which held that
such statement must be subject to cross-examination in accordance with the ordinary rules of evidence.
Lord Buckmaster was also of the same view. He conceived the issue in these words at pp. 440-441:
“The sole point for determination is the method by which the status of any person who claims the benefit of
this privilege is to be determined. For the appellant it is contended that the statement of the Attorney-General
on the instructions of the Foreign Office is for this purpose conclusive, while the respondent asserts that any
such dispute should be ascertained in the ordinary way according to the usual rules of evidence.”

After considering the matter and examining a number of decided cases he arrived at the conclusion at pp.
446-447 that:
“The privilege itself depends upon maintaining the obligations of international law and the comity of nations.
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.”

If a statement made to the court by the Foreign Office through the Attorney-General be conclusive, a
communication sent direct to the court by that department of state must be an a fortiori. In Suarez v.
Suarez [1918] 1 Ch. 176, C.A. the Foreign Office by a letter under the hand of an Assistant Secretary of
State informed the plaintiff’s solicitors that the defendant’s name had been removed from the Diplomatic
List. It was held that that letter was sufficient evidence of that fact. In the earlier case

[p.123] of [1976] 2 GLR 115

of Mighell v. Sultan of Johore (supra) it was held that a letter written on behalf of the Secretary of State
for the Colonies on the ministry’s official letterhead to the effect that the defendant was an independent
sovereign power was conclusive of that fact. In that case, Wright J. who dealt with the matter as a
vacation judge, caused a communication to be made to the Secretary of State for the Colonies in order to
ascertain the status of the defendant. It was the reply to that letter that was held to be decisive of the fact
stated therein. Wills J. who eventually dealt with the matter thought the course adopted by Wright J. was
correct. He said at p. 153:
“In the first place it is clear that the proper mode of obtaining information with respect to the status of the
defendant was adopted by Wright, J., who communicated with and obtained a letter from the Colonial
Office.”

In my opinion, there was convincing evidence that the second defendant was a diplomatic agent and that
this issue was completely clinched by the letter addressed to the court by the Ministry of Foreign Affairs.
It seems to me desirable and in accord with the public interest that on this matter, both the executive and
judiciary should speak with one voice. I think notwithstanding the hearsay rule, the letter from the
Foreign Office was admissible on the question whether or not the second defendant was recognised by the
government as a diplomatic agent. In my judgment, the judge’s contrary holding was erroneous. I venture
to suggest that a court faced with a similar problem in the future, would do well to cause the Foreign
Ministry to be addressed on the matter and an official communication from that ministry to the effect that
the person affected was or was not recognised as a diplomatic agent, should, unless the court has reason to
doubt the genuineness of that communication, be conclusive of the matter.
If the learned judge was in error in holding that there was no proof that the second defendant was
recognised by the government as a diplomatic agent because of what the court conceived to be deficiency
of evidence, his second reason for rejecting his claim to diplomatic immunity is even less defensible. That
reason is simply that his insurance of the car out of deference to our Motor Vehicles (Third Party
Insurance) Act, 1958, amounts to an express waiver of his immunity to the jurisdiction. That reason
drives a coach and four through the clear provisions of article 32. 1. and 2. of the Vienna Convention on
Diplomatic Relations. By reason of section 1 of the Diplomatic Immunities Act, 1962, that article has
statutory force in this country. It provides that:
“1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article
37 may be waived by the sending State.
2. Waiver must always be express.”

(The emphasis is mine.)

[p.124] of [1976] 2 GLR 115

In the context of this case, the second defendant and his family’s diplomatic immunity could only validly
be waived by the Government of Israel. This was pointed out to the plaintiff’s counsel in the second
defendant’s solicitor’s letter of 28 April 1967. It was re-asserted by the Principal Secretary in his letter to
the court dated 11 August 1967. That letter in fact averred that no such waiver was made by the Israeli
Government. To say then that there was express waiver is to fly both in the face of the law and the fact.
Although the learned judge said the insurance of the car “amounted to an express waiver of his immunity
from the jurisdiction of the court” what he meant was in fact that by insuring his car, the second
defendant impliedly waived his immunity. This is because at no time did the second defendant in terms
say he was waiving his immunity. According to the Shorter Oxford Dictionary (3rd ed.), at p. 658
“express” means definitely stated, “expressed and not merely implied.” I am inclined to think it is to
avoid the implication of waiver from ambiguous conduct that article 32. 1. and 2. lays it down that
“Waiver must always be express.”
That aside, it is hardly reasonable to imply waiver, even if this were permissible, by the simple fact of the
second defendant insuring his car. There is no evidence as to what was the precise nature of the cover
taken up by the second defendant. If it was comprehensive, his object might well be the protection of his
own property and incidentally, that of others. If it was a third party insurance, it may well be out of
deference to our Motor Vehicles (Third Party Insurance) Act, 1958. Article 41. 1. of the Vienna
Convention on Diplomatic Relations enjoins all diplomatic agents to respect the laws of the receiving
State. It enacts:
“Without prejudice to their privileges and immunities. it is the duty of all persons enjoying such privileges
and immunities to respect the laws and regulations of the receiving State .

It would indeed be strange if a diplomatic agent were to flout the laws of his host country so as to be able
to assert his immunity. The Motor Vehicles (Third Party Insurance) Act, 1958, was passed to meet a felt
social need of this country and I entirely reject the argument that a diplomatic agent who in deference to
this law insures his car, thereby loses his diplomatic immunity. I think this is the less satisfactory of the
two reasons given by the learned judge for denying diplomatic immunity to the First Secretary of the
Embassy of Israel and his family. In my judgment, that reason is wholly wrong. My conclusion is that all
the defendants were immune from the jurisdiction of the courts of this country and that the judge ought to
have acceded to their application and set aside the writs.
I set out earlier in this judgment the copious averments made by the plaintiff about the fact of insurance.
The second defendant’s insurers were not parties to this action. No relief was sought nor could properly
have been sought against them in this suit. The only relief endorsed on the writ was for damages for
negligence. The first defendant was sued as the tortfeasor and the second defendant was brought in on the
principle of
[p.125] of [1976] 2 GLR 115

respondent superior. If the defendants denied negligence, the only issue would be negligence or no
negligence. If they admitted it, the issue would be what was the proper measure of damages. The fact that
any damages awarded against them may eventually be paid by their insurers, does not make them parties
or raise on the pleadings any justiciable issue between them and the plaintiff. Indeed in those common
law jurisdictions where negligence suits are triable by a jury, the fact that the defendants are insured is
never permissible to be communicated to the jury.
As I understand it, only the second defendant could bring in the insurers under the third party procedure
with leave of the court to claim indemnity from them if he had reason to believe that they are likely to
dispute their liability to indemnify him for any judgment that may be passed against him: see Order 16A
of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). In an action of this nature, it is clearly no
business of the plaintiff to plead the wholly irrelevant fact that the defendants were insured. If this action
had been against compellable defendants and had taken its normal course, a judge would have been well
warranted in striking out all the paragraphs referring to insurance under rule 29 of Order 19 of the High
Court (Civil Procedure) Rules, on the ground that such pleadings tend “to prejudice, embarrass, or delay
the fair trial of the action.” And it is this irrelevant pleading that misled the judge into holding that the
second defendant had waived his diplomatic immunity.
In view of what I said in the foregoing paragraphs of this judgment, the judge ought to have acceded to
the application of the defendants and struck out the suit for want of jurisdiction. As he held otherwise, I
think his ruling was wrong and ought to be reversed.

JUDGMENT OF SOWAH J.A.

I agree.

JUDGMENT OF FRANCOIS J.A.

I also entirely agree.

DECISION
Appeal allowed.
Objection on grounds of want of jurisdiction sustained.
S.Y.B.-B.