Alamieyeseigha, R (on the application of) v Crown Prosecution Service [2005] EWHC 2704 (Admin)

Case No CO/9133/2005[2005] EWHC 2704 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25 November 2005
Before
THE HONOURABLE MR JUSTICE COLLINSTHE HONOURABLE MR JUSTICE SILBER
The Queen on the application of
Between
DIEPREYE SOLOMON PETER ALAMIEYESEIGHAClaimantTHE CROWN PROSECUTION SERVICEDefendants
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Edward Fitzgerald QC, Malcolm Shaw QC and Joseph Middleton (instructed by Corker Binning) for ClaimantJonathan Fisher QC and Mark Lucraft (instructed by CPS, Ludgate Hill) for Defendants
Judgment

I. Introduction

[1]The issue raised on this judicial review application is whether the decision to prosecute Diepreye Solomon Peter Alamieyeseigha (“the claimant”) should be quashed on the grounds that he is entitled to sovereign immunity in his capacity as Governor and Chief Executive of Bayelsa State, which is a constituent part of the Federal Republic of Nigeria. The matter to be resolved is whether a Governor and Chief Executive of a state, which is a constituent part of the Federal Republic of Nigeria, is entitled to immunity in criminal proceedings brought in this country.[2]The claimant has been charged by the Crown Prosecution Service ("CPS") with three offences. In the first charge , the claimant is alleged to have received £420,000 into a bank account held at HSBC in London on or about the 14 December 2001 contrary to section 93C (1) (A) of the Criminal Justice Act 1988 as amended. The money, it is alleged, represented the proceeds of a corrupt payment received from an oil and property merchant in Nigeria.[3]In the second charge, the claimant is alleged to have money laundered the sum of £475,724 contrary to section 93C (1) (A) of the Criminal Justice Act 1988 as amended by paying into the account of a firm of solicitors (Nedd & Co) on or about the 22 March 2003, for use when purchasing a property at 68-70 Regents Park Road, London, N3. The CPS allege first that there is a clear association between the receipt of these funds by the claimant and the grant of valuable contracts awarded by Bayelsa state and second that the claimant abused his position as Governor to benefit personally from the award of contracts with Bayelsa State. The third charge relates to a cash sum of £920,000 which was found at the claimant’s home on 15 September 2005. Again the CPS alleges that this sum represents the proceeds of criminal conduct contrary to section 327(1) of the Proceeds of Crime Act 2002.[4]On 7 October 2005, the applicant was released from custody on bail subject to a number of conditions, one of which was that he was not to go within three miles of any airport or port. Subsequently, the claimant made an unsuccessful application to Southwark Crown Court to vary the bail conditions so as to enable him to travel to Nigeria for four weeks to deal with the affair of Bayelsa. It is common ground that the claimant is entitled to immunity from prosecution in Nigeria at least while he remains as Governor of Bayelsa State.[5]The matter originally came in front of us as a habeas corpus application when an issue was raised as to whether such an application could be made by the claimant as he was then on bail. Mr Edward Fitzgerald QC for the claimant then applied to bring a claim by judicial review to quash the decision to prosecute the claimant. Mr Jonathan Fisher QC for the Crown Prosecution Service did not object to this course, which enables the claim of state immunity by the claimant to be resolved speedily and a resolution of this dispute at this stage would allow the claimant if successful in his challenge to the decision to prosecute him to avoid the delay and the cost of a trial. We note that in Jones v The Ministry of Interior [2004] EWCA Civ 1394, Mance LJ expressed the view in paragraph 10 that “claims to state immunity should be resolved at an early stage in the proceedings”. We then proceeded to hear this matter as a judicial review application in relation to which we gave leave to the claimant to proceed against the CPS and Mr Fitzgerald agreed to lodge the appropriate application for judicial review. We also abridged all time periods and waived the need for an Acknowledgement of Service.[6]The claimant contends that he is entitled to state immunity but the CPS contend that Bayelsa is merely a constituent part of the Federal State, which is not entitled to state immunity and that the claimant, who can have no better claim to State Immunity than Bayelsa State, is also not entitled to it. The CPS’s submissions accord with the understanding of the Foreign and Commonwealth Office of Her Majesty’s Government, which issued a certificate under section 21 of the State Immunity Act 1978 ("the 1978 Act") dated 26 September 2005, which recorded, among other matters that: “The Federal Republic of Nigeria is a State for the purposes of Part I of the Act. Bayelsa State is a constituent territory of the Federal Republic of Nigeria, a federal state for the purposes of part 1 of the Act . [The claimant] is the Governor and Chief Executive of Bayelsa State and is not to be regarded for the purposes of Part 1 of the Act as Head of State of the Federal Republic of Nigeria…”.[7]The Attorney General for State of Bayelsa has stated in a witness statement that the claimant is entitled to state immunity but the Attorney General of the Federal Republic of Nigeria disagrees. The issue whether the claimant is entitled to State Immunity is essentially a question of law for the courts of this country on which the views of either Attorney General is not of any value but we should explain that apart from stating that the Attorney General for State of Bayelsa is “also an accomplice in the case against the [claimant]”, the Attorney General of the Federal Republic of Nigeria has stated in a witness statement made in these proceedings dated 3 November 2005 that:
“The immunity enjoyed by [the claimant as Governor] does not extend beyond the shores of Nigeria….It is lawful for the Crown in the United Kingdom to arrest, detain and prosecute the Governor for money laundering offences….the only person that can lay claim to sovereign immunity is the President of the Federal Republic of Nigeria under the doctrine of sovereign immunity in international law and duly accredited Nigerian Diplomats under the Vienna Convention”

II. The Issues

[8]The issue of state immunity in criminal proceedings was considered in R v Bow StreetMagistrates ex parte Pinochet (No3) [2000] 1 AC 142. At page 201G, Lord Browne-Wilkinson said:
“It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the process of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of a head of state persist to the present day; a head of state is entitled to the same immunity as the state itself”
[9]While that statement may perhapsbe couched in terms which are somewhat too wide, it undoubtedly reflects the general approach to state immunity. A foreign state’s claim of immunity for civil liability is now governed by statute in the form of the 1978 Act but Part I of the Act, which deals with immunity of a state in civil proceedings, does not apply to criminal proceedings (section 16(4)). Part I of the Act was enacted as part of the process by which the United Kingdom Government ratified various treaties, which dealt with civil (but not criminal) proceedings. Immunity from criminal proceedings is dealt with in section 20(1) of the 1978 Act, which applies immunity for criminal proceedings to “a sovereign or other head of State” (section 20(1) (a) of the 1978 Act).[10]Indeed, it is common ground that(a) if a State is entitled to immunity, the Head of that State is also therefore entitled to immunity (see section 20 of the 1978 Act),(b) the determination of the issue in this case as to whether the claimant is entitled to state immunity and that depends upon whether Bayelsa state should be accorded state immunity and so(c) the issue on this application is therefore whether Bayelsa State is entitled to state immunity. As I have explained, the claimant contends that it is so entitled but the defendants disagree.[11]The claimant contends correctly that there is authority that the Federal Unit of the state, which is what Bayelsa State is, can in certain circumstances partake of the sovereignty of the state as a whole and obtain State Immunity as was shown by the decision of the Court of Appeal in Mellenger v New BrunswickDevelopment Corporation [1971]1WLR 604, which I will have to consider in some detail in paragraphs 23 to 28 below. Nevertheless, in the case of civil claims, Laddie J has held in BCCI v Price Waterhouse [1997] 4 All ER 108 that the head of a member of a Federation, in that case the Ruler of Abu Dhabi, was not entitled to immunity while the President of the entity of which Abu Dhabi formed part, namely the United Arab Emirates, was entitled to state immunity. There is no reason to beleive that a similar result would not have been reached if the claim in that case had been made in criminal rather than in civil proceedings. Thus, it does not follow that every part of a federal state is entitled to immunity from criminal proceedings but it is a case-sensitive decision if a particular member of a federal state can be regarded as a separate state so that its head becomes entitled to immunity from criminal proceedings[12]Mr Fisher also contends that if contrary to his primary submission, it is held that the claimant is entitled to be accorded state immunity in the criminal proceedings, then that immunity belongs to the Federal Government of Nigeria and that it has now been validly waived by that government. Thus, it is now necessary to consider the rival submissions on the two issues before us, namely first whether Bayelsa State is entitled to state immunity with inevitable consequence that the claimant will also be so entitled and second if he is so entitled, whether it has been validly waived.

III. The Claimant’s Submission on whether Bayelsa is entitled to state immunity

[13]Mr Fitzgerald QC and Professor Malcolm Shaw QC who represented the claimant both contended that there are good reasons why Bayelsa state should be accorded Sovereign Immunity because under the Nigerian Constitution, Bayelsa State enjoys sufficient autonomy and a sufficient range of governmental functions so as to be entitled to state immunity.[14]They contend that there are five criteria which are necessary to determine if a federal state such as Bayelsa is entitled to state immunity and they are that:
“ (i)The sovereignty in question has been divided as such at the moment of the adoption of the relevant constitution and not devolved from a higher constitutional authority; (ii) The sub-state enjoys substantial and genuine autonomy which is not subject to the intervention of the federal government; (iii) The sub-state has substantial competence over traditional governmental functions within its territory which is not subject to the intervention of the federal government; (iv) Such autonomy and such competence are irrevocable in the absence of the consent of the sub-states as necessary; (v) It is not a necessary pre-condition for qualification for immunity that the sub-state possesses foreign relations power (Sayce; Mellenger)”
.

IV. The Defendant’s case on whether Bayelsa is entitled to state immunity

[15]The basis of the defendant’s case is that Bayelsa is not a Sovereign State that possesses an international personality. Mr Fisher attaches great importance to the limited powers given to Bayelsa under the Nigerian Constitution. In consequence, he submits that Bayelsa State as the federal state is not entitled to an immunity of its own under international law with the inevitable result that the claimant has no immunity himself. Mr. Fisher further submits that even if, contrary to his submissions, the claimant is entitled to State Immunity, this has been effectively waived.

V. Discussion on the factors, which determine if Bayelsa State is entitled to state immunity

[16]It is appropriate at this stage to consider the circumstances in which a federal State, such as Bayelsa State, can be entitled to state immunity. This entails considering initially the factors relied upon by counsel on this application, which might be decisive or relevant on this issue before we ascertain whether this enables us to determine whether the claimant is entitled to State Immunity. (I). The legal capacity of the federal state to enter into international relations.[17]It was the submission of Mr Fisher that for a federal State to have state immunity , it must have an international legal personality which encompasses the legal capacity to enter into international relation and he points out that the American Law Institute’s Restatement of Foreign Relations Law (3rd Edition 1986) states that :
“Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities”
[18]Mr Fisher’s submission is that the capacity to enter into international relations is a critical element of this definition of a State and the fact that the US Constitution gives the Federal Government sole jurisdiction in this regard is the reason given in the Restatement as to why the fifty states of the USA are not “States” in the sense of international law (ibid pp74 and 76). Mr. Fisher also relies on the statement of Professor Shaw, in his work on International Law (5th edition, 2003), that:
“The capacity to enter into relations with other States is an aspect of the existence of the entity in question…It is a capacity not limited to sovereign nations, since both international organizations and non-independent States can enter into legal relations with other entities under the rules of international law. But it is essential for a sovereign state to be able to create such legal relations with other units as it sees fit. Where this is not present, the entity cannot be an independent state”
[19]According to Mr Fisher, it therefore follows that where, in a federal state, the constitution allocates sole competence in international relations to the federation itself, the constituent parts of the state do not possess international personality. As Oppenheim’s International Law (9th Edition, 1992, edited by Sir Robert Jennings and Sir Arthur Watts) explains: “Where, as happens frequently, a federal state assumes in every way the external representation of its member states, so far as international relations are concerned, the member states make no appearance at all….Here the member states are sovereign too, but only with regard to internal affairs. All their external sovereignty being absorbed by the federal state, they are not international persons at all” (vol.1, p.252).[20]Mr Fisher points out that these academic writings show the importance of determining whether a federal state conducts international relations in ascertaining whether it is entitled to State or sovereign immunity. In her leading work on state immunity, Lady Fox explains that in the past before the 1978 Act was enacted, parts of a federal state were sometimes accorded State Immunity but she concludes that at the present time the capacity to enter into international relations and the possession of international legal personality are prerequisites to the enjoyment of immunity (The Law of State Immunity (2002),p.324) and in relation to federations, she explains that::
“The general principle here seems to be that immunity is to be applied only to an entity which shows itself to have a personality of its own in its foreign relations with other countries”
(p.334)[21]In Pinochet (No3) (supra), it was suggested that the basis for state immunity was that there was equality between the receiving country, namely the United Kingdom, and the State claiming state immunity to equality. Thus Lord Goff said that “the principle of State Immunity is expressed in the Latin maxim par in parem non habet imperium the effect of which is that one sovereign does not adjudicate on the conduct of another” (page 210 E-F). Lord Millett explained with my emphasis added at page 269 that the basis of State Immunity is that “it would be an affront to the dignity of the equality of sovereign States to subject [the head of it] to the jurisdiction of the municipal courts of another state”. The precondition of equality between the state granting State Immunity and the beneficiary of that immunity indicates that they both perform similar functions and those would include handling international relations.[22]In the Case concerning the Arrest Warrant of 11 April 200 (Democratic Republic of Congo v Belgium) ICJ Reports 2002, the International Court of Justice explained the basis of immunities of Ministers in a way which suggested that it was based on the need to be involved in international relations when it said that “53. In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effect of the performance of their functions on behalf of their respective States. In order to determine the extent of these immunities, the Court must therefore consider the nature of the functions exercised by a Minister for Foreign Affairs. He or she is in charge of his or her Government’s diplomatic activities and generally acts as its representative in international negotiations and intergovernmental meetings…. In the performance of these functions, he or she is frequently required to travel internationally and thus must be in a position freely to do so whenever the need should arise.”[23]These statements by judges and academic writers suggest that if a federal state is not involved in international relations, it cannot be regarded as a state for the purpose of granting it State Immunity. In response Mr Fitzgerald and Mr. Shaw contend that there is Court of Appeal authority, which establishes that a federal state can be regarded as a State even though it is not involved in international relations. They point out that in the Mellenger case (supra), the Court of Appeal held that the New Brunswick Development Corporation was an arm or the alter ego of the Government of New Brunswick which was a sovereign state and so it was entitled to immunity from suits in the courts of this country. It is clear from the terms of the British North America Act 1867 (“the 1867Act”) that New Brunswick did not have the power to enter into foreign relations first because of the matters in respect of which New Brunswick may “exclusively make laws” in section 92 of the 1867 Act did not include any aspect of international relations and second because section 132 of the 1867 Act provided that:
“The Parliament and Government of Canada shall have all Powers necessary or Proper for performing the Obligations of Canada or any Provinces thereof, as Part of the British Empire towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries”
[24]If the defendant’s submissions were correct, it would follow that New Brunswick could not be entitled to state immunity but the Court of Appeal held that it was so entitled.[25]Lord Denning MR explained at page 608 that: “It was suggested by Mr Kempster that the Province of New Brunswick does not qualify as a sovereign state so as to invoke the doctrine of sovereign immunity. But the authorities show decisively the contrary. The British North America Act 1867 gave Canada a federal constitution. Under it the powers of government were divided between the dominion government and the provincial governments. Some of those powers were vested in the dominion government. The rest remained with the provincial governments. Each provincial government, within its own sphere, retained its independence and autonomy directly under the Crown. The Crown is sovereign in New Brunswick for provincial powers, just as it is sovereign in Canada for dominion powers: see Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick [1892] A.C. 437. It follows that the province of New Brunswick is a sovereign state in its own right, and entitled, if it so wishes, to claim sovereign immunity”.[26]Salmon LJ said at page 611 that: “There can be no doubt I think, that the Federal Government of New Brunswickis sovereign within its own sphere of influence. That appears from the Liquidators of the Maritime Bank of Canada v Receiver GeneralNew Brunswick [1892] AC437 and also from Hodge v The Queen (1883) 9 App Cas 132).[27]Phillimore LJ agreed with both judgments.[28]In those circumstances, it followed that the mere fact that New Brunswick, which was the federal state in that case, did not have control over international relations did not mean that for that reason alone that it could not be entitled to state immunity . That would show that the court did not adopt the test propounded by Mr. Fisher, namely that in order to be entitled to State Immunity, the state concerned had to have the capacity to enter into international relations. It is, however, not possible to ascertain from the judgments in Mellenger or from the law report of it or from the cases cited in argument precisely what was argued in the Court of Appeal and what factors were critically important. Thus, we do not know if, for example, there were any submissions made to the effect that New Brunswick was not entitled to State Immunity because it was not involved in international relations, but we must assume that the Court of Appeal was aware of that fact and that it considered that point. It must be assumed that Mellenger’s case was not decided per incuriam. We are bound to follow it even though there is a powerful argument for contending that state immunity is based on helping states in their international relations and State Immunity should not be available to a member of a federal state, which cannot conduct international relations.[29]I should add that for the purpose of completeness that the claimant’s counsel also sought to seek derive assistance on this point from Sayce v Ameer Ruler Sadig Mohommed AbbasiBahawalpur State ([1952] 2 QB 390) in which the Court of Appeal upheld a decision that the defendant was the ruler of Bahawalpur State which had been an independent state prior to the passing of the Indian Independence Act 1947 and the accession of that State to the Dominion of Pakistan. The Court of Appeal considered that it was decisive in that case that the British government had stated in a letter first that the State of Bahawalpur was not a part of His Majesty’s Dominions and second that the defendant, within the limitations imposed by the arrangements contained in the establishment of Pakistan was a sovereign ruler of a State. As I have said, there is no similar letter in this case and indeed the Foreign and Commonwealth Office and the Attorney General for Nigeria have said both that Bayelsa State and the claimant are not entitled to State Immunity[30]Thus, I am driven to the conclusion that because of the Mellenger case, the fact that a part of Federal state does not conduct international relations does not mean it cannot automatically be entitled to State Immunity. Nevertheless, the fact that does not conduct international relations is in itself for the reasons which have been set out in paragraphs 17 to 22 above a powerful factor, which indicates that it is not entitled to State Immunity and thus to that extent we cannot accept the submissions of Mr. Fitzgerald about the lack of significance to be attached to this factor. (ii). A Certificate from the Secretary of State[31]Section 21 of the 1978 Act provides that:[32]It would be strange if a certificate that a particular country is or is not a State would be conclusive for civil proceedings but that such certificate would be of no value in criminal proceedings. In many cases, the same conduct could form the basis of both criminal and civil proceedings such as in the case of an a assault or a fraud ; the certificate of the Secretary of State would be conclusive for civil proceedings and it should surely be so regarded as significant for criminal proceedings. Similarly, such a certificate would be conclusive for an application under the Proceeds of Crime Legislation which are regarded as civil proceedings while it should also have significance for criminal proceedings. It is noteworthy that in many cases decided before the 1978 Act was enacted, the courts merely followed the Secretary of State’s certificate. The case of Sayce has already been mentioned but the older cases of Statham and Statham v Gaekwar of Baroda [192] P 92 and Mighell v Sultan of Johore[1894] 1 QB 149 are other examples of a certificate of the Secretary of State determining the issue of immunity in the English courts. The House of Lords held in Duff Development Company Limitedv Government of Kelantan[1924] AC 797 that: “It is the duty of the Court to accept the statement of the Secretary of state thus clearly and positively made as conclusive upon the point” (per Lord Cave at pages 808 809 and see also pages 813, 820, 824 and 830, 831).[33]In the case of Government of the Republic of Spain v. SS “Arantzazu Mendi” [1939] AC 256, Lord Atkin with whom the other members of the Appellate Committee agreed said at page 264 in relation to the effect of a decision by the Government on whether a foreign Government should be recognised that “Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another.. Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State Immunities must flow from that decision alone”[34]Thus, the certificate of the Secretary of State has to be considered as being of decisive importance in determining the entitlement to State Immunity. In this respect, criminal proceedings can be different from civil proceedings. The claimant‘s formulation of the factors to be considered in deciding if a federal state such as Bayelsa State has State Immunity is defective because it fails to take into account the views of the Executive in the United Kingdom. If the Secretary of State does not consider that a particular country is to be recognised as a state for the purposes of enjoying State Immunity and if additionally that state is not involved in international relations, it cannot then be entitled to State Immunity. (iii). The Functions entrusted to the Member of the Federation and the Functions Retained by the Federal Government 35 As I have explained, Mr. Fitzgerald and Mr. Shaw both submit in their formulation of the criteria for determining whether a federal state is entitled to State Immunity that the functions entrusted to the federal state and those retained by the Federal Government are important factors in determining whether they are entitled to State Immunity. If the ability to enter into international relations and the decision of the Government are not determinative, the functions entrusted to the federal state and those retained by the Federal Government must be highly relevant factors. (iv). The view of the Federal Government Judicary 36 .The views of the Federal Government the judiciary might be relevant if they could adduce facts and matters, which were not in the Constitution because all political systems are based to some extent on judicial decisions, which supplement the Constitution. VI. Is Bayelsa State to be regarded as a State whose Governor is entitled to State Immunity?[37]Both the claimant and the defendant produced helpful reports from experts on Nigerian law with the claimant relying on a report of Professor Benjamin Nwabueze, who is a very experienced Nigerian advocate as well as being a writer on legal matters, while the defendants adduced a report from Dr Tunde Ogowewo, a Senior Lecturer at King’s College, London who is an expert in Nigerian law. They have explained the relevant provisions in the Constitution of the Federal Republic of Nigeria 1999 (“the Nigerian Constitution”) and the Nigerian case law which is relevant to the present case. The passages that follow take account of the evidence of both of them and it is appropriate now to deal with the matters, which we concluded were relevant in Part V of this judgment and under the same headings. It is appropriate to point out that Part 1 of the Second Schedule of the .Nigerian Constitution contains a list of matters over which the Federal Government has exclusive jurisdiction to the exclusion of the federal states, such as Bayelsa State (Article 4 (3) of the Nigerian Constitution) (I). The legal capacity of the federal state to enter into international relations.[38]Bayelsa state has no legal powers to conduct foreign relations for and on behalf of itself because “external affairs” are exclusively reserved to the Federal government (Part 1 of the Second Schedule of the .Nigerian Constitution, item 26). Furthermore, associated matters are exclusively reserved to the Federal Government such as “borrowing of moneys within or outside Nigeria for the purposes of the Federation of the State”, “defence”, “exchange control” “implementation of treaties relating to matters on this list” and” trade and commerce and in particular trade and commerce between Nigeria and other countries” (Part 1 of the Second Schedule of the .Nigerian Constitution paragraphs items 7, 17 24, 31 and 62). These suggest strongly that Bayelsa State is not be regarded as a state for the purposes of immunity. (ii). A Certificate from the Secretary of State[39]As has already been explained, the Secretary of State for the Foreign and Commonwealth Office of Her Majesty’s Government, has issued a certificate under section 21 of the 1978 Act dated 26 September 2005, which records that: “The Federal Republic of Nigeria is a State for the purposes of Part I of the Act. Bayelsa State is a constituent territory of the Federal Republic of Nigeria, a federal state for the purposes of part 1 of the Act. [The claimant] is the Governor and Chief Executive of Bayelsa State and is not to be regarded for the purposes of Part 1 of the Act as Head of State of the Federal Republic of Nigeria…”.[40]This is further and decisive evidence that Bayelsa State is not entitled to State Immunity and that the claimant is also not so entitled. As Bayelsa State was not involved in international relations, in the light of the Secretary of State’s certificate, the claimant cannot be entitled to State Immunity. In case this conclusion is incorrect, the other possible relevant factors will now have to be considered. (iii). The Functions entrusted to the member state and the functions retained by the Federal Government[41]The Nigerian Constitution shows that the States such as Bayelsa State do not have any powers in respect of a number of matters which would normally be associated with a sovereign state such as, “arms. ammunitions and explosives”, banking, “citizenship ,naturalisation and aliens”, “defence”, “immigration into and emigration from Nigeria”, maritime matters, mines and minerals including oil fields and natural gas policing, post telegraph and telephone services, prisons, railways, “taxation of income, profits and capital gains except as otherwise prescribed by the [Nigerian] Constitution”. These are all federal matters which are dealt with by the Federal Government to the exclusion of the Federal States ( Part 1 of the Second Schedule of the Nigerian Constitution paragraphs items 2,6,9,17,30,36,39, 45,46,48,55 and 59 ).[42]It is also noteworthy that there are three other provisions which show the limited powers of federal sub-states such as Bayelsa State in relation to the Federal Republic of Nigeria. First although Bayelsa State has the power to make laws many of which are shared by the federal government, in the event of conflict with Federal laws, section 4 (5) of the Nigerian Constitution provides that any state law shall be void to the extent of it being inconsistent with the Federal law and this shows the subservient position of Bayelsa State. Second, the President of Nigeria has the constitutional authority to declare a state of emergency in Bayelsa state (section 305)(3) of the Nigerian Constitution). Third, section 5 (3) of the Nigerian Constitution limits the executive powers of Bayelsa state by providing that they should be exercised as not to impede or prejudice the exercise of the executive powers of the Federal Republic of Nigeria .[43]All these factors, which I have described, show that Bayelsa State has very limited powers and that even those limited powers which it enjoys are subject to the overriding powers of the Federal Republic of Nigeria. In reaching that conclusion I have not overlooked the matters in respect of which Bayelsa State has exclusive jurisdiction and which are described in Professor Nwabueze’s helpful report. This would mean that Bayelsa State is not even entitled to State Immunity on the formulation advocated by the claimant’s counsel and which we set out in paragraph 14 above because the powers of Bayelsa State are so extensively circumscribed that it cannot lay claim to be a sovereign state. (iv). The view of the Federal Government Judicary[44]Section 2 (1) of the Nigerian Constitution states with emphasis added that “Nigeria is one indivisible and indissoluble sovereign state” and that indicates that the federal parts of it, such as Bayelsa State, are not to be regarded as states entitled to State Immunity because of the indivisible nature of Nigeria..[45]It is noteworthy that the Supreme Court of Nigeria has not viewed the federal states within Nigeria, such as Bayelsa State, as sovereign states. Thus, in the case of Attorney General of the Federation of Nigeria v Attorney General for Abia State [2001] 11 Nigerian Weekly Law Reports, the defendants were the Attorneys General for all the sub-states in Nigeria, including Bayelsa State. It was stated in the judgments of the Court with my emphasis added that “the defendants in this action are not persons within the scope of international law not being sovereign states” (per Ogundare JSC at page 749 C) and that “it is certainly not true that the “state” referred to in international conventions refer to our provinces [such as Bayelsa State] that we conveniently call States”.[46]More recently, Dr Ogowewo has pointed out that in the case (of which we have not seen a law report) of Attorney General of the Federation of Nigeria v Attorney General for Abia State (No 2) [2002] 6 Nigerian Weekly Law Reports, the Supreme Court had to consider whether the reference to a “state” in the United Nations Convention on the Law of the Sea could be construed as applying to a State in Nigeria like Bayelsa State. Chief Justice Uwais said that “the 36 constituent states of Nigeria are not members of the comity of Nations and so the provisions of international law do not directly apply to them but the Federation” (Page 728 -729). On the assumption that this judgment is properly and fairly quoted, it provides additional support for our conclusion that Bayelsa State is not entitled to State Immunity.[47]Before leaving this topic, it should be added that if contrary to our view, the claimant’s counsel were correct in their formulation of the factors which should determine whether a state is entitled to State Immunity, and which are set out in paragraph 14 above then Bayelsa State would still not be entitled to State Immunity because, as has been explained in paragraphs 41 and 42 above, of its very limited powers and the way in which those powers are circumscribed[48]It follows that the Bayelsa State is not entitled to State Immunity and that the claimant therefore also has no right to State Immunity with the result that his claim to quash the decision to prosecute must be dismissed.

VII. If the claimant has State Immunity, has it been waived?

[49]As the claim for judicial review must be dismissed, this issue is not a live one but is only of academic interest. We did not hear full argument on it and so we will not give a definitive decision on this issue but there would appear to be powerful arguments open to the defendant to establish that even if the claimant was entitled to some form of immunity under Nigerian law, that immunity can be and has been waived by the Federation of Nigeria.

VIII. Conclusion

[50]Therefore although we have given permission for the claimant to pursue this claim for judicial review, the substantive application for relief must be dismissed. 55. Mr Justice Collins[51]I agree that this claim fails for the reasons given by my Lord.52. I would only add this. Mellenger v New Brunswick Development Corporation [1971] 1 WLR 604 is the only case cited to us in which state immunity has been accorded to what in argument in this claim was referred to as a sub-state, (that is to say, a member of a state having a federal constitution), in the absence of a certificate from the relevant government department. However, all the cases in which immunity has been granted to a sub-state show that it is possible, so far as English law is concerned, for such a sub-state which has no powers to deal with international relations to have state immunity. It is to be noted that most of the authorities have depended upon of certificates from the relevant government department that immunity exists.53. Mellenger seems to be an exception. The point was taken in the Court of Appeal (it had not been taken before the judge at first instance) and there is no suggestion in the report that any attempt was made to ask the Foreign and Commonwealth Office for its view. The decision of the Court depended heavily, as the citation of Liquidators of the Maritime Bank of Canada v Receiver Generalof New Brunswick [1892] A.C. 437 shows, upon the position of the Crown in relation to Canada and its individual provinces which had been incorporated into Canada by the 1867 Act. One such was New Brunswick.54. Here, the 36 states which now make up the Federation of Nigeria have come into existence since independence to provide for some aspects of government in their areas. The situation is covered by the 1999 Constitution which, by Article 2, makes clear that Nigeria is ‘one indivisible and indissolvable sovereign state’.55. I confess to some surprise that the Court in Mellenger felt able to decide as it did without seeking the government’s view in the light of the decision of the House of Lords in Duff Development Co v Kelantan Government [1974] A.C. 797. The majority of the House in that case made it clear that in case of any uncertainty a Secretary of State should be asked for the necessary information. I appreciate that in Mellenger the Court thought that there was no uncertainty, but I am far from persuaded that that belief was correct. However, although we are of course bound by the decision, it seems to me that it is dependent on its own facts and cannot help to determine the result in the present case. All that it shows is that a responsibility for international relations is not an essential requisite so far as English law is concerned for immunity. That is clear from the 1978 Act itself which, by s.14 (5), enables Her Majesty by Order in Council to provide for any provisions of the Act to apply to a constituent territory of a federal state, i.e. to grant immunity, to a sub-state. 56. I am satisfied that it would only rarely be appropriate to regard a sub-state is entitled to immunity. I do not regard Bayelsa State as entitled to immunity and so the claimant himself has no such entitlement.

Cited in 3 later judgments