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Immunity of State Property – the Central Bank of Nigeria in Foreign Courts*

Published online by Cambridge University Press:  07 July 2009

E.I. Nwogugu
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Extract

Nigeria as a comparatively newly independent state has not developed extensive practice and case law in the area of immunity of foreign state owned property within the country. However, it is possible to glean from the existing laws and the attitude of the Nigerian government in disputes on this subject what may be generally regarded as the Nigerian practice in this field.

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 10 , December 1979 , pp. 179 - 196
Copyright
Copyright © T.M.C. Asser Press 1979

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References

1. Cap. 53 Laws of the Federation of Nigeria, 1958.

2. Cap. 52 Laws of the Federation of Nigeria, 1958.

3. No. 42 of 1962

4. Nigeria's Treaties in Force, vol. III, 3rd ed. (Lagos 1970) pp. 968–83Google Scholar

4a. (1938) A.C. 485, 490 (1938) 1 All E R 719.

4b. Nwabueze, B.O., The Machinery of Justice in Nigeria, (London 1963). pp. 19–22Google Scholar; Park, A. W., The Sources of Nigerian Law, (London 1963) pp. 5–9Google Scholar; Obilade, A.O., The Nigerian Legal System, (London 1979) pp. 69–80.Google Scholar

5. [1969] 2 All ER 707 (CA) [1969] 1 WLR 703.

6. Note No. 5/73, West Africa No. 2901, 15 January 1973 pp. 88–89.

7. Note No. 37 of 19 January 1973. For the text see 67 AJIL (1973) pp. 536–7.

8. For a full discussion of the validity of this measure in international law see Nwogugu, . “The Inviolability of Diplomatic and Consular Packages”, 1 The Nigerian Juridical Review (1976) pp. 30–46.Google Scholar

9. Government Notice No. 1434, 9 August 1975, entitled “Regulations on Sailing and Arrivals of Vessels”. The Ports (Emergency Provisions) Decree 1975 (No. 40 of 1975) which was made subsequently provided that after 19 December 1975 vessels were not to enter any port in Nigeria unless official permission had been obtained and imposed criminal penalties for disregard of the Decree.

10. Sunday Times, 22 October 1978 p. 32.

11. Cap. 30 Laws of the Federation of Nigeria, 1958.

12. [1976] 1 WLR 868. See the paper by R. Higgins supra

13. Ibid. at p. 877.

14. Ibid.

15. [1977] 2 WLR 356.

16. Ibid at p. 365.

17. [1976] 2 WLR 214.

18. Ibid. at p. 381.

19. Ibid. at p. 369.

20. Ibid. at p. 376.

21. Ibid. at p. 385.

22. Ibid. at p. 370.

23. Ibid. at p. 375.

24. Ibid. at p. 384.

25. [1976] 2 WLR 214.

26. District Court of Frankfurt, Judgment of 2 December 1975 – Docket No. 3/80 186/75. The judgment is reproduced in XVI ILM pp. 501–5 (May 1977).

27. District Court of Frankfurt, Judgment of 25 August 1976 – Docket No. 3/80 14/76.

28. 76 Civ. 3745 (GLG) decided on 27 March 1978.

29. 77 Civ. 2809 (GLG).

30. 77 Civ. 2348 (LWP).

31. 77 Civ. 3045 (MEF).

32. Public Law 94–583, 90 Stat. 2891.

33. [1977] 2 WLR 356 at p. 371.

34. See O'Connell, D.P., International Law vol. 2, 2nd ed. (London 1970) p. 846Google Scholar; Brownlie, I., Principles of Public International Law, 2nd ed. (Oxford 1973) pp. 324–5.Google Scholar

35. US Court of Appeals, Second Circuit 336 F.2d. 354. Certificate denied 381 US 934, 85 S.Ct. 1763 (1965). See also ADM Milling Co. v. Republic of Bolivia: XIV ILM (1975) pp. 1279–81; Roviin Sales Co. v. Socialist Republic of Romania, 70 AJIL (1976) p. 834.

36. Trutta v. State of Romania (1926) Leach, Oliver, & Sweeney, , The International Legal System: Cases and Materials (New York: The Foundation Press Inc. 1973) pp. 327, 336–7Google Scholar. Gugenheim v. State of Vietnam [1955] ILR 224.

37. Leach, Oliver and Sweeney, op.cit., p. 337.

38. Brownlie has observed that: “The concept of acts jure gestionis, of commercial, nonsovereign, or less essential activity, requires value judgments which rest on political assumptions as to the proper sphere of state activity and of priorities in state policies. Many economists consider that an extensive public sector, as a concomitant of a modicum of planning, is a necessary way forward for underdeveloped economies which face problems of poverty, health, nutrition, and education of a magnitude equal to that of a national emergency only created for some Western countries by war or threat of war” – Principles of Public International Law, 2nd ed. (Oxford 1973) pp. 323–4.Google Scholar

39. [1976] 2 WLR 214.

40. See Ezejiofor, G., “Stare Decisis in the Nigerian Courts” 9 The Nigerian Law Journal (1975) p. 1 at pp. 7–13Google Scholar; Ezejiofor, G., “Stare Decisis – When may the Supreme Court overrule itself?” 1 The Nigerian Juridical Review (1976) pp. 95–99.Google Scholar

41. Ibid.

42. The restrictive principle has been applied by courts in many countries including Belgium, Greece, Italy, Egypt, Switzerland, Austria, West Germany, the Netherlands, Ireland, Canada, Pakistan, the USA and the UK. For a general survey of judicial practice see I. Brownlie, op.cit., p. 320; Sweeney, , “The International Law of Sovereign Immunity” (US Dept. of State, October 1973).Google Scholar