[1976] 2 G.L.R. Mahama v. Soli 115

the transfer and may be embarrassed to see a sudden removal of a casefrom his cause list. Section 100 of the Courts Act, 1971 (Act 372), has thefurther advantage of avoiding such a situation. In fact an applicationmade under section 100 seem to be a conventional and orthodox method ofseeking transfer of cases based either on grounds of convenience, interestor bias: see the cases of Amoah-Attah v. Kankan (supra), Kwomi v. Quaynorand Quist v. Kwantreng (supra). I do not think section 99 of the Courts Act,1971 (Act 372), was intended to confer anymore wide discretiona^powersof transfer on the Chief Justice than section 101 confers on High Courtjudges in their areas of jurisdiction.

Application dismissed.

D. R. K. S.

ARMON and Another v. KATZ

GOURT OF APPEAL, ACCRA

5 April 1976

APALOO, SOWAH AND FRANCOIS JJ.A.

International law—Diplomatic privilege—Immunity from judicial process Propertime for claiming right to diplomatic immunity—Whether dependent on datecause of action arose or time jurisdiction was sought to be exercised.

International law—Diplomatic privilege—Immunity from judicial process Proofof status ofperson claiming privilege—First Secretary of Israeli Embassy andson sued for negligence—Objection to jurisdiction on grounds of diplonmticimmunity raised—Letter from Principal Secretary Ministry ofForeign Affairsas to extent of privilege—Whether letter conclusive.

International law—Diplomatic privilege—Waiver—Embassy official insuring carunder Motor Vehicles {Third Party Insurance) Act, \95Z—Whether act o/insurance constituting express waiver of diplomatic immunity Proper modefor waiving diplomatic immunity—Motor Vehicles {Third Party Insurance)Act, 1958 {No. 42 of Diplomatic Immunities Act, 1962 {Act 148),Sched., art. 32. \. and2. . • j •

Practice and procedure—Pleadings—Striking out—Action against insured inrunning down case—Plaintiff's pleading containing averment of defendanbeing insured—Insurers not parties to action—Averment of fact of defendantbeing insured wholly irrtlevant—Irrelevant averment misleading jud^ inadjudicating issue—Discretion of judge to strike out averment High Court{Civil Procedure) Rules, 1954 (L.M 140/4), Order 19, r. 29.

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

116 Ghana Law Reports [1976] 2 G.L.R.

therefore sued per her next friend, her mother, for damages for negligence andin her pleadings averred that the second defendant's vehicle had been insuredunder the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958).The defendants entered conditional appearance and subsequently applied to theHigh Co^ for an order to set aside service on them of the writ of summons forwant of jurisdiction on grounds of diplomatic immunity. By his affidavit, tiresecond defendant deposed that he possessed a Ghana Government diplomaticcard issued on 19 November 1964 and signed by the Principal Secretary of thehfinistiy of Foreign Affairt to the effect that he, the second defendant, wasentitled to the ''courtesies and privileges of a person of a diplomatic status."hi 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 seconddefendant (as the First Secretary of the Israeli Embassy) and his family werefflititledt^full diplomatic privileges and immunities as laid down by the VicimaConvention scheduled to the Diplomatic Immunities Act, 1962 (Act 148). Thetrial 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 hadbeen recognised by the government as the First Secretary of the Israeli Embassyand that the letter from the Principal Secretary of the Ministry of ForeignAffairs was not conclusive and the writer of that letter must be subjected tocroK-examination and (b) by insuring the car pursuant to the Motor Vehicles(Third P^y Insurance) Act, 1958, the second defendant had expressly waivedany pnvile^ or immunity from jurisdiction he might have had. On appeal.

Held, allowing the appeal: (1) the relevant date at which the seconddefendant's right to immunity from the court's jurisdiction must exist, wasnot the date the cause cf action arose (as erroneously held by the trial judge)but'the time jurisdiction was sought to be exercised over him. Oictiun ofLord 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 ofForeign Affairs was admissible and conclusive on the question whether ornot the second defendant had been recognised by the government as adiplmnatic agent immune from the court's jurisdiction and therefore thetrial judge's contrary holding was erroneous. Dicta of Wills J. in Mightll v.Sultan of Johore (supra) at p. 153; of Lord Buckmaster and Lord Phillimorein Engelke v. Musmann [1928] A.C. 433 at pp. 440-441, 446-447 and 451,H.L. reflectively and iSworez V. [1918] 1 Ch. 176, C.A. applied.

(3) The trial judge had erred in holding that by insuring his car indeference to the Motor Vehicles (Third Party Insurance) Act, 1958, thesecond defendant had thereby expressly waived his diplomatic immunity;such a waiver could only validly be made by the lsrat.li Government under^icle 32.1. and 2. of the Vienna Convention scheduled to the DiplomaticImmunities Act, 1962 (Act 148).

(4) hi an action against an insured in a running down case, it was nobusu^ of the plaintiff to plead the wholly irrelevant fact that the defendantWM insured. The fact that any damages awarded against the defendantmight eventually be paid by the insurers did not make them parties orcoiUd raise on the pleadings any justiciable issue between them and theplaintiff. In the instant case, if the action had been against compellabled^endants and had taken its normal course, a judge would have been wellwarranted in striking out all the paragraphs referring to insurance underL.N. 140A, Order 19, r. 29. It was the irrelevant pleading that misled the

[1976] 2 G.L.R. Armon v. Katz 117

judge into holding that the second defendant had waived his diplomaticimmunity.

Decision of Antcrkyi 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.

Appeal from the decision of the High Court refusing to set aside theservice on the appellants of a writ of summons for want of jurisdiction onthe grounds of diplomatic immunity. The facts are sufficiently stated inthe judgment of Apaloo J.A.

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

Apaloo J.A. This appeal raises the somewhat novel but interesting questionsas to what legal privileges diplomatic agents enjoy in this country andtheir immunity from the domestic jurisdiction of our courts is proved.But before entering into an examination of these questions, it is well torelate the facts. ,

On 26 February 1967, the respondent who I shall hereinafter call theplaintiff, rode in a car driven by the first appellant (hereinafter called thefirst defendant). This car belonged to the second appellant (hereinafterreferred to as the second defendant). The latter is the father of the firstdefendant. At a point along the Weija-Accra road, that car went into ditchand the plaintiff suffered injuries. Both the plaintiff and the first defendantare infants according to the laws of this country. The plaintiff was thenseventeen-and-a-half years of age and the first defendant was half-a-yearher 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 wrifclaiming ''damages forinjuries and loss suffered by the plaintiff as a result of the negligence ofthe first defendant the servant and/or agent of the second defendant. Tothe writ, was attached a statement of claim. That statement shows thatthe infant defendant was sued per his mother, Mrs. Shalomo Armon, w owas described as "his next friend." Although nothing on this case turnedon this, perhaps I should point out that while an infant sues by his nextfriend, he defends an action by his guardian ad litem.

The record shows that the writs were served on both defendants onthe date of issue, namely, 18 May. On 29 May 1967 both defendantsentered conditional appearance "without prejudice to an application . . .

1 Ghana Law Reports [1976] 2 G.L.R.

to set aside the writ of summons . . . for want of jurisdiction on thegrounds of diplomatic immunity."

Paragraph (6) of the statement of claim averred negligent drivingagainst the first defendant but no particulars of it were given. There were,however, particulars of injuries and special damages alleged to have beensuffered by the plaintiff. Apart from the absence of the particulars ofnegligence, the plaintiff s pleading contains one peculiarity. The seconddefendaht seems to have insured the car in obedience to the requirementsof section 3 of the Motor Vehicles (Third Party Insurance) Act, 1958(No. 42 of 1958). Although no relief was sought against the insurers in thisaction and no issue can properly be joined between them and the plaintiff,no less than four of the* twelve-paragraph statement of claim containaverments regarding insurance. But for the fact that this irrelevant pleadingwas an important consideration in the court's ruling, this fact would havebeen unworthy of mention. Since the fact of insurance weighed heavilywith the trial judge, it is necessary to recite the averments in the pleadingspecifically referable to it, namely, paragraphs (9)—(12):

(9) The plaintiff says that after the accident the second defendantgave the address of the London & Lancashire Insurance Co.,Ltd. as his insurers and told the plaintiff to contact the insurancefor any claim she may have.

(10) The plaintiff says that before he could contact the said insurancecompany, he received a letter saying that passenger liability isexcluded under the terms of the policy and therefore no claimwill be entertained by them.

(11) The plaintiff will contend that she was not a passenger and thatthe insurance company is liable to satisfy any damages whichshe may be awarded against the first defendant.

(12) The plaintiff says that the insurance company has accordinglybeen notified under the terms of the Motor Vehicles (Thirdarty nsurance) Act, 1958, and [she] will proceed against the

insurance company for the satisfaction of any damages thatmay be awarded against the first defendant."

On 1 1967, the defendants moved the court to set aside the serviceon ® e writ of summons. They claimed that they were diplomaticagents of the State of Israel and were, as such, not amenable to the

^ ^ court. There was evidence that the second defendantwas the First Secretary of the Embassy of Israel, the infant defendant wasIS son an is guardian ad litem was the wife of the second defendant.IS app ication was resisted on a number of grounds. In so far as it is

possi e to etemine the grounds of objection from the judge's notes,ey are at. ( ) t ough ambassadors and foreign sovereigns enjoy full

diplomatic iii^unity, officials of the embassy do not; (2) inasmuch as the^cond defendant engaged in commercial activity, article 31 of the ViennaConvention on Diplomatic Relations precludes him from relying on '

[1976] 2 G.L.R. Armon v. Katz 119

diplomatic immunity and (3) as the wrong on which the action was foundedfell outside the official duties of the second defendant, he could not shieldhimself under the cloak of diplomatic immunity.

The learned judge, Anterkyi J. (in his ruling delivered on 20 October1967, unreported; diges'ted in (1968) C.C. 10) refused to set aside theservice of the writ on two grounds, namely, first, there was no legal orconclusive proof" that at the date of the accident, the second defendanthad been recognised as the First Secretary of the Embassy of Israel by the"paramount ruling authority in Ghana," and secondly, that by taking apolicy of insurance pursuant to the Motor Vehicles (Third Party Insurance)Act, 1958, the second defendant had expressly waived any privilege orimmunity from jurisdiction he might have had. One of the groundsby counsel for the plaintitf for denying diplomatic inmunity to the seconddefendant was that the insurance company with which the latter insure ,was a commercial organisation and by entering into a contract of insurancewith that organisation, the second defendant had engaged in a commerciaactivity outside his official functions and article 31. 1- (w . ®Convention debars him from claiming immunity from the jurisdicUon oithe court. The learned judge expressly rejected that wholly untenablecontention but the fact that it was made, reflects the quality of the legalargument advanced on behalf of the plaintiff. tu *

The defendants invite us to upset the ruling on the ground: Cl)there was conclusive evidence before the court that the secon e en anwas a diplomatic agent and was accordingly immune from the juris ictionof the court, and (2) that the judge was in error in holding that by insuringthe car in obedience to the municipal law of this country, he hahis diplomatic immunity. It is to the credit of the judge that although hisconclusion favoured the plaintiff, he did not found his ru ing on egrounds urged by counsel for the plaintiff. One does not requireknowledge of public international law to reject the argument that only aforeign sovereign or an ambassador is entitled to diplomatic immuni y orthat a diplomatic agent who in deference to the law of Uie receiving stateinsures his car, thereby engages in the commercial activity which depriveshim of the diplomatic immunity to which he is otherwise entdled.

To say this is, not however, to deny that the rationes decidendi 0learned judge's ruling are a little surprising. The judge seems to havethought that at the date of the accident there must be, what he describedas "legal and conclusive proof" that the second defendant was recogmsedas the First Secretary of Israel by the "paramount ruling aut on y inGhana." Even if that were the right criterion, there was such evidence.The second defendant swore that he had a Ghana government ip oma iccard dated 19 November 1964 and this was signed by the Principal Secretary of the Ministry of Foreign Affairs. There was also evidence t a iwas endorsed iit that card that the holder was entitled to the * courtesiesand privileges of a person of a diplomatic status. Such cards were s ownto the court. One of such privileges is immunity from the criminal, civil

120 Ghana Law Reports [1976] 2 G.L.R.

and administrative jurisdiction of this country: see article 31. 1. of theVienna Convention on Diplomatic Relations which has been enacted intolaw by the Diplomatic Immunities Act, 1962 (Act 148), s. 1. No evidencewas offered to the court to contradict this.

If the evidence was susceptible of any doubt, such doubt was completelydispelled by the official communication sent to the court by the PrincipalSecretary of the Ministry of Foreign Affairs. He said the second defendantwas the First Secretary of the Enibassy of Israel and he and his familywere entitled to the full diplomatic privileges and the immunities laid downby Act 148. The acceptance and recognition of persons who form the staff^1* ^'^I'^ssy are acts of sovereignty based on the comity of nations. Theone department of State which oversees this exercise of sovereignty andis peculiarly knowledgeable about who are diplomatic agents recognised assuch by this country, is the Ministry of Foreign Affairs. What can be moreauthentic than an official head of that'ministry certifying under his handthat a person sought to be impleaded before the court was so recognisedand 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 suchother ministry as may be agreed, shall be notified of:

(a) the appointment of members of the mission, their arrival andtheir final departure or the termination of their functions withthe mission."

There are similar provisions with regard to member's families and servants.us, that mnistry is the one department of government that can state

Wit authority at any given time who are and who are not recognised asdiplomatic agents.

The plaintiff produced no evidence nor sought to contend that thesecond defendant was not a diplomatic agent. On the contrary, sheac^pted him as such and sought to buUy him into waiving such immunity,^e second defendant by his solicitor, answered the plaintifTs solicitor'sletter of 26 April 1967, inter alia, as foUows:

Further I am instructed to inform you in the first place that ast e usual practice goes my said client cannot himself decide to waivems immunity which can only be waived by his government. Even ifhe and his son could waive their immunity, they would not be bulliedinto domg so."

If the plaintiff did not regard the second defendant as a diplomaticagent and therefore enjoying immunity, h^r attempt to get him waive such

sense. The judge considered that the relevant date atwhich the n^t to immunity must exist, is the date the cause of actionarose. He said the second defendant was not shown to have been recognisedas a diplomatic agent at the date of the accident. As a criterion by whichimmunity could be claimed, the judge's view is wrong. The relevant dateis the time jurisdiction is sought to be exercised over him.

[1976] 2 G.L.R. Armon v. Katz 121

No diplomatic agent is likely to be bothered by the fact that a personacquires a cause of action against him in the country of his accreditation.Different considerations arise when that cause of action is sought to beagitated against him by action. It is only then that he can invoke hisimmunity. In Mighell v. Sultan ofJohore [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 willsubmit to the jurisdiction? Obviously, as it appears to me, it is whenthe Court is about or is being asked to exercise jurisdiction over him,and not any previous time . . . there can be no inquiry by theCourt into his conduct prior to that date. * The only question iswhether, when the matter comes before the Court, and it is shewnthat the defendant is an independent sovereign, he then elects tosubmit to the jurisdiction."

As far as this issue is concerned, there is no difference between a foreignsovereign, an ambassador or any diplomatic agent. This statement ofprinciple makes no practical impact on this case because both at the datethe cause of action arose and when he was sought to be impleaded, thereis unimpeachable evidence that the second defendant was the FirstSecretary of the Embassy of Israel. But in so far as the learned judge sruling suggests that diplomatic immunity cannot be claimed at the datethe defendant is sought to be impleaded unless he was recognised as adiplomat at the date the cause of action arose, that view is wrong andought to be disaffirmed.

As I said, there was also an official intimation to the court from thePrincipal Secretary of the Ministry of Foreign Affairs to the effect thatthe second defendant, being the First Secretary of the Embassy of Israel,enjoys together with his family the privileges and immunities which theDiplomatic Immunities Act, 1962, accords to accredited diplomatic agents.The judge refused to accord that letter any weight because, as the judgeput it, "the writer . . . should herself have given evidence as to the factsstated and subjected herself to cross-examination." For this view, thejudge cited the case of Engelke v. Musmann [1928] A.C. 433, H.L. andimplied that he derived support from the observations of Lord Phillimorein denying any weight to that letter.

With great respect, the learned judge must have misread that learnedlord's pronouncement on this question. The headnote in that case at p. 433reads:

"A statement made to the Court by the Attorney-General on theinstructions of the Foreign Office as to the status of a person claimingimmunity from judicial process on the ground of diplomatic privilege,whether as ambassador or as a member of the ambassador's staff, isconclusive."

In ordinary litigation, .such a letter, in so far as it seeks to be proof ofthe facts stated in itj-mS^e shut out as offending the hearsay rule. But

122 Ghana Law Reports [1976] 2 G.L.R.

the basis on which such letter from the Foreign Ministry can be acted uponwas explained by Lord Phillimore at p. 451 as follows:

"When therefore the certificate from the Foreign Office wasdelivered by the Attorney-Greneral, it was not, as suggested on behalfof the plaintiff, a piece of hearsay evidence, a mere narrative of whatthe Ambassador had told the Foreign Office, It was a statement ofwhat the Secretary of State on behalf of His Majesty had done, notwhat he was doing ad hoc, or what he was believing and repeating,but what the Foreign Office had done. The certificate is no attempton the part of the executive to interfere with the judiciary of thecountry. The status which gives the privilege has been already createdby the Crown in virtue of its prerogative in order to administer itsrelations with a foreign country in accordance with international law."

Lord Phillimore accordingly concurred in reversing the ruling of the CourtAppeal which held that such statement must be subject to cross-

examination in, accordance with the ordinary rules of evidence. LordBuckmaster was also of the same view. He conceived the issue in thesewords at pp. 440-441:

The sole point for determination is the method by which the statusof any person who claims the benefit of this privilege is to be determined. For the appellant it is contended that the statement of theAttorney-General on the instructions of the Foreign Office is for thispurpose conclusive, while the respondent asserts that any such disputeshould be ascertained in the ordinary way according to the usual rulesof evidence."

After considering the matter and examining a number of decided caseshe arrived at the conclusion at pp. 446-447 that:

*The privilege itself depends upon maintaining the obligations ofinternational law and the comity of nations. It would, indeed, beunfortunate if, after recognition had been afforded by His Majestythrough the Foreign Office to people as holding such posts on theambassadorial staff as entitled them to the privilege and the statementas to their position had been afforded on behalf of the Crown throughffie Attorney-General, it was to be disregarded by the judiciary, for,in such circumstances, the ensuing contest could not possibly inureto the public good."

If a statement made to the court by the Foreign Office through theAttorney-General be conclusive, a communication sent direct to the courtby 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 anAssistant Secretary of State informed the plaintiff's solicitors that thedefendant's name had been removed from the Diplomatic List. It washeld that that letter was sufficient evidence of that fact. In the earlier case

[1976] 2 G.L.R. Armon v. Katz 123

of Mighell V. Sultan of Johore (supra) it was held that a letter written onbehalf of the Secretary of State for the Colonies on the ministry's officialletterhead to the effect that the defendant was an independent sovereignpower was conclusive of that fact. In that case, Wright J. who dealt withthe matter as a vacation judge, caused a communication to be made tothe Secretary of State for the Colonies in order to ascertain the status ofthe defendant. It was the reply to that letter that was held to be decisiveof the fact stated therein. Wills J. who eventually dealt with the matterthought 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 byWright, J., who communicated with and obtained a letter from theColonial Office."

In my opinion, there was convincing evidence that the second defendantwas a diplomatic agent and that this issue was completely clinched by theletter addressed to the court by the Ministry of Foreign Affairs. It seemsto me desirable and in accord with the public interest that on this matter,both the executive and judiciary should speak with one voice. I thinknotwithstanding the hearsay rule, the letter from the Foreign Office wasadmissible on the question whether or not the second defendant wasrecognised by the government as a diplomatic agent. In my judgment, thejudge's contrary holding was erroneous. I venture to suggest that a courtfaced with a similar problem in the future, would do well to cause theForeign Ministry to be addressed on the matter and an official communication from that ministry to the effect that the person affected was or wasnot recognised as a diplomatic agent, should, unless the court has reasonto doubt the genuineness of that communication, be conclusive of thematter. .

If the learned judge was in error in holding that there was no prootthat the second defendant was recognised by the government as a diplomaticagent because of what the court conceived to be deficiency of evidence,his second reason for rejecting his claim to diplomatic immunity is evenless defensible. That reason is simply that his insurance of the car out ofdeference to our Motor Vehicles (Third Party Insurance) Act, 1958,amounts to an express waiver of his immunity to the jurisdiction. Thatreason drives a coach and four through the clear provisions of article 32.1. and 2. of the Vienna Convention on Diplomatic Relations. By reasonof section 1 of the Diplomatic Immunities Act, 1962, that article hasstatutory force in this country. It provides that:

"1. The immunity from jurisdiction of diplomatic agents andof persons enjoying immunity under Article 37 may be waived bythe sending State.

2. Waiver must always be express."*^

(The emphasis is mine.)

124 Ghana Law Reports [1976] 2 G.L.R.

In the context of this case, the second defendant and his family'sdiplomatic immunity could only validly be waived by the Government ofIsrael. This was pointed out to the plaintiff's counsel in the seconddefendant's solicitor's letter of 28 April 1967. It was re-asserted by thePrincipal Secretary in his letter to the court dated 11 August 1967. Thatletter 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 faceof the law and the fact. Although the learned judge said the insurance ofthe 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, thesecond defendant impliedly waived his immunity. This is because at notime 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 inclinedto think it is to avoid the implication of waiver from ambiguous conductthat 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 werepermissible, 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 takenup by the second defendant. If it was comprehensive, his object might wellbe the protection of his own property and incidentally, that of others. Ifit was a third party insurance, it may well be out of deference to our MotorVehicles (Third Party Insurance) Act, 1958. Article 41. 1. of the ViennaConvention on Diplomatic Relations enjoins all diplomatic agents torespect the laws of the receiving State. It enacts:

"Without prejudice to their privileges and immunities, it is theduty of all persons enjoying such privileges and immunities lO respectthe laws and regulations of the receiving State . . ."

It would indeed be strange if a diplomatic agent were to flout the lawsof his host country so as to be able to assert his immunity. The MotorVehicles (Third Party Insurance) Act, 1958, was passed to meet a feltsocial need of this country and I entirely reject the argument that adiplomatic agent who in deference to this law insures his car, thereby loseshis diplomatic immunity. I think this is the less satisfactory of the tworeasons given by the learned judge for denying diplomatic immunity tothe 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 wereimmune from the jurisdiction of the courts of this country and that thejudge ought to have acceded to their application and set aside the writs.

I set out earlier in this judgment the copious averments made by theplaintiff about the fact of insurance. The second defendant's insurers werenot parties to this action. No relief was sought nor could properly havebeen sought against them in this suit. The only relief endorsed on the writwas for damages for negligence. The first defendant was sued as thetortfeasor and the second defendant was brought in on the principle of

[1976] 2 G.L.R. Armon v. KaU 125

respondeat superior. If the defendants denied negligence, the only issuewould be negligence or no negligence. If they admitted it, the issue wouldbe what was the proper measure of damages. The fact that any dsimagesawarded against them may eventually be paid by their insurers, does notmake them parties or raise on the pleadings any justiciable issue betweenthem and the plaintiff. Indeed in those common law jurisdictions wherenegligence suits are triable by a jury, the fact that the defendants areinsured is never permissible to be communicated to the jury.

As I understand it, only the second defendant could bring in theinsurers under the third parly procedure with leave of the court to claimindemnity from them if he had reason to believe that they are likely todispute their liability to indemnify him for any judgment that may bepassed against him: see Order 16A of the High Court (Civil Procediure)Rules, 1954 (L.N. 140A). -In an action of this nature, it is clearly nobusiness of the plaintiff to plead the wholly irrelevant fact that the defendants were insured. If this action had been against compellable defendantsand had taken its normal course, a judge would have been well warrantedin striking out all the paragraphs referring to insurance under rule 29 ofOrder 19 of the High Court (Civil Procedure) Rules, on the ground thatsuch pleadings tend **to prejudice, embarrass, or delay the fair trial of theaction." And it is this irrelevant pleading that misled the judge into holdingthat 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 andstruck out the suit for want of jurisdiction. A,® be held otherwise, I thinkhis ruling was wrong and ought to be reVers^. . ' c;' *

. Sowab XA. I agree.

'Francois J.A. I also entirely agree.

Appeal allowed.Objection on grounds of want ofjurisdiction sustained.

S.Y.B.-B.