State Practices on Foreign State Immunity and Diplomatic Immunity: A Confusion of Legal Thoughts by the Nigerian Courts

With the coming into prominence of the diplomatic and state immunity, there has been an issue as to whether such immunity should be absolute or restricted to certain intercourse. While some developed countries, like England and the United States have codified their practices on both diplomatic and sovereign state immunity in their state legislations, their case laws have also indicated a shift from absolute to restricted immunity. In Nigeria, however, apart from the fact that there is no state immunity legislation, the case law faced with issue of diplomatic and sovereign immunity merely misinterpreted the Nigeria’s Diplomatic Immunity Act (1962) to cover the ground. This legislation only applies to diplomatic and consular officers, their staff, and members of their family as expressly stated, but not to “sovereign states”. The Nigerian courts follow the absolute immunity approach by holding always that both the foreign state and their envoys are immune to court jurisdiction in all matters including commercial transactions and tortuous liabilities they are involved in. This article employs a case law analysis of the Nigerian position and posits that there is a distinction between sovereign state immunity and diplomatic immunity and that the Nigerian courts should hold that foreign sovereigns ought to be held accountable for their obligations under non-state matters, such as commerce and other civil obligations which they willfully entered into with a third party within that distinction as it obtains in the United Kingdom and the United States. Hence, there should be no immunity to court jurisdiction in the receiving state on such civil matters.