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See authoritative annotated version at: Guest for the Central Bank. Conflict of Laws — Sovereign immunity — Bank — Commercial transaction for supply of cement to Nigerian state — Central bank issuing irrevocable letter of credit — Action to enforce payment — Status of bank — Whether department of state — Whether immunity in respect of commercial transactions exists.
The Central Bank of Nigeria was incorporated in by a Nigerian statute as a central bank modelled on the Bank of England.
It issued legal tender and acted as banker and financial adviser to the Government of Nigeria. It also acted as banker for other banks and its affairs were under considerable governmental control. The cement was to be shipped to Nigeria where it was to be used to build government barracks.
The plaintiff shipped the cement to Nigeria but there was congestion in the port of discharge and the Central Bank declined to make payments claimed to be due for the price and for demurrage. Held, allowing the appeal, 1 that the bank, which had been created as a separate legal entity with no clear expression of intent that it should have governmental status, was not an emanation, arm, alter ego or department of the State of Nigeria and was therefore not entitled to immunity from suit post, pp.
Servicio Nacional Del Trigo  1 Q. New Brunswick Development Corporation  1 W. The modern principle of restrictive sovereign immunity in international law giving no immunity to acts of a commercial nature is consonant with justice, comity and good sense post, pp. Per Lord Denning M. International law knows no rule of stare decisis post, pp.
The Court of Appeal is bound by previous decisions to hold that absolute sovereign immunity is a rule of international law until the House of Lords or Parliament declares to the contrary post, p. Keyn 2 Ex. On November 4, , the plaintiff, Trendtex Trading Corporation, issued a writ against the Central Bank of Nigeria, the defendant, in respect of payments due to the plaintiff from the bank under a letter of credit dated July 24, , relating to a contract of the same date for the purchase of cement from the plaintiff by Pan-African Export and Import Co.
On November 4, Mocatta J. On December 9, , following an order on November 11, Mocatta J. The plaintiff appealed on the grounds that 1 the judge erred in fact or law in holding a that the bank was entitled to sovereign immunity; b that the bank was an emanation, an arm,an alter ego, and a department of the State of Nigeria; c that it was established or sufficiently established that all funds held or deposited in the United Kingdom in the name of the bank were funds held or deposited for and on behalf of the Nigerian state; d that the bank was not estopped from reliance upon a plea of sovereign immunity by the terms of its letter of April 28, , to Credit Suisse of Lausanne; and e that the principles of sovereign immunity to be applied were not affected by community law.
All the berths were occupied. There were to ships outside waiting. More ships were arriving daily. Most of them were carrying cement. All of those waiting were on demurrage. It was because the government departments had ordered far too much. No doubt Nigeria needed cement.
It was a country which was developing fast. They were building houses, factories, barracks, and so forth. All of the work required cement. Previously the average rate of import through all ports had been two million tons of cement a year.
Yet early in the government departments then in charge in Nigeria had ordered 10 times that quantity, 20 million tons, to be delivered over the next 12 months. The ports were utterly unable to cope with it. Yet here was 10 times that amount arriving — of cement alone — leaving nothing for other vital imports of food and materials. The crisis was one of the reasons for a change of government in Nigeria.
On July 29, , a new military administration took over the reins. One of its first tasks was to find out the root cause of the congestion. As a first step the new military administration issued a notice suspending the import of cement into Nigeria.
It told suppliers not to load any more cement for the time being. It warned them that it would not pay demurrage unless it was certified as proper. It set up a committee to negotiate fresh terms with the suppliers. The object was to reduce the quantities on order and to spread the deliveries over a longer time. Most of the suppliers have appreciated the difficulties and fresh terms have been arranged. The steps thus taken have proved successful. The congestion of vessels has been cleared.
But there is an aftermath. It is a large number of legal proceedings. This case is one of them. It is a claim on a letter of credit issued by the Central Bank of Nigeria, the defendant. We are not concerned with the rights or wrongs of the claim: The Central Bank of Nigeria claim that they cannot be sued in this country on the letter of credit: The plaintiff, Trendtex Trading Corporation, disputes this on the ground that this is an ordinary commercial transaction to which sovereign immunity does not apply.
So I must describe the nature of the transaction. The story starts with a contract which was made on April 25, , before the crisis broke. The price was U.
Shipment at the rate of 20, tons a month, plus or minus 10 per cent. In pursuance of that contract the Ministry of Defence instructed the Central Bank of Nigeria to open a letter of credit in favour of Pan-African to the extent of U.
It was numbered It was issued in London through their correspondent bank, the Midland Bank Ltd. It was transferable abroad once only and was subject to the uniform customs rules of the International Chamber of Commerce relating to documentary credits revision.
It is important to notice that the Midland Bank Ltd. The Midland Bank Ltd. They only advised the seller of its terms. On the credit itself, they said:. The point about confirmation had been expressly raised by suppliers: In order to fulfil their contract to supply the cement, Pan-African entered into a contract with the Trendtex Trading Corporation of Zurich, Switzerland. The contract was dated July 24, By it Pan-African agreed to buy , tons of Portland cement from Trendtex.
All other terms were to be as expressed in the Central Bank of Nigeria letter of credit Midland Bank advice no. On the same day, July 24, , the credit was transferred to Trendtex. It was done by means of a new irrevocable letter of credit issued by the Central Bank of Nigeria through its correspondent the Midland Bank, London. It was numbered A and was for U. In order to fulfil this contract to supply cement, Trendtex agreed to buy , tons of cement from Alsen-Breitenburg of Hamburg, and established a letter of credit issued by a Swiss bank for the price.
During August and September , Trendtex shipped four consignments of cement under their contract with Pan-African. For those shipments Trendtex presented shipping documents to the Midland Bank Ltd. In October , Trendtex made two further shipments: They presented the shipping documents for these last two to the Midland Bank but were not paid the price. When each of those six vessels arrived off Lagos, the port was congested with hundreds of vessels loaded with cement, all waiting to discharge.
Each waited its turn. The Gempita came on demurrage on September 5. The Sugar Importer on September The Newporton October The Constantinos on October Trendtex claimed payment of this demurrage under the letter of credit. They presented documents, all in order, to the Midland Bank, London, in support of their claim for demurrage. But the Midland Bank declined to pay.
This was because of a telex message sent on September 24, from the Midland Bank to the bankers of Trendtex:. Trendtex also wanted payment of the price for the October shipments but the bank refused to pay.
On October 8, , representatives of Trendtex went to Lagos and made representations to the Nigerian government. They were told that no payment whatever would be made on the last two vessels: They claimed demurrage on all six vessels.
They claimed the price of the cement shipped on the last two vessels. They claimed damages on account of their obligations to their suppliers, Alsen-Breitenburg.
The Central Bank of Nigeria applied to set aside the writ on the ground that the Central Bank of Nigeria is a department of the Federal Republic of Nigeria and, therefore, immune from suit. On March 26, , Donaldson J. Trendtex appeal to this court. It is effective because the bank have that sum to their credit with the Midland Bank.
The money is being retained here pending the appeal. One thing I would mention at the outset. There was a string of contracts for the purchase of cement — by the Ministry of Defence at Lagos from the Pan-African company in London — by the Pan-African company from Trendtex — and by Trendtex from Alsen-Breitenburg.
Those contracts are altogether distinct from the contracts contained in the letter of credits. The contract sued upon in this action is the contract contained in the letter of credit issued by the Central Bank of Nigeria in favour of Pan-African and transferred to Trendtex.
Trendtex can sue upon that contract as a distinct contract completely separate from the contract of sale. Another point I would mention is that many people must have suspicions about the validity of the contracts made by the previous administration. There must have been some mismanagement somewhere to lead to this pile-up of vessels off Lagos. This may give rise in some of these claims to defences on the merits.
But no considerations of that kind arise at this stage. The only question now is whether the action should be allowed to proceed at all. Is it to be stayed or struck out on the ground of sovereign immunity?
The case has been presented to us by both sides in a manner to which I would pay sincere tribute. The documents have been prepared admirably with all the relevant material and authorities collected, photographed and arranged for convenient study. The arguments have been put forward convincingly by two of the most able and persuasive advocates of the day. We cannot hope to do full justice to them, but we are much indebted to them.
The doctrine of sovereign immunity is based on international law. It is one of the rules of international law that a sovereign state should not be impleaded in the courts of another sovereign state against its will.
Like all rules of international law, this rule is said to arise out of the consensus of the civilised nations of the world. All nations agree upon it. So it is part of the law of nations. To my mind this notion of a consensus is a fiction. The nations are not in the least agreed upon the doctrine of sovereign immunity.
The courts of every country differ in their application of it. Some grant absolute immunity. Others grant limited immunity, with each defining the limits differently. There is no consensus whatever. Yet this does not mean that there is no rule of international law upon the subject. It only means that we differ as to what that rule is. Each country delimits for itself the bounds of sovereign immunity. Each creates for itself the exceptions from it. It is, I think, for the courts of this country to define the rule as best they can, seeking guidance from the decisions of the courts of other countries, from the jurists who have studied the problem, from treaties and conventions and, above all, defining the rule in terms which are consonant with justice rather than adverse to it.
A fundamental question arises for decision. What is the place of international law in our English law? One school of thought holds to the doctrine of incorporation. It says that the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament. The other school of thought holds to the doctrine of transformation.
It says that the rules of international law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long established custom. The difference is vital when you are faced with a change in the rules of international law. Under the doctrine of incorporation, when the rules of international law change, our English law changes with them. But, under the doctrine of transformation, the English law does not change.
It is bound by precedent. It is bound down to those rules of international law which have been accepted and adopted in the past. It cannot develop as international law develops. The doctrine of incorporation goes back to in Buvot v. Barbut 3 Burr.
Bath 3 Burr. That doctrine was accepted, not only by Lord Mansfield himself, but also by Sir William Blackstone, and other great names, too numerous to mention. The doctrine of transformation only goes back to in the judgment of Cockburn C. Keyn , The King  A. And I myself accepted this without question in Reg.
As between these two schools of thought, I now believe that the doctrine of incorporation is correct. Otherwise I do not see that our courts could ever recognise a change in the rules of international law. It is certain that international law does change. I would use of international law the words which Galileo used of the earth: Thus, when the rules of international law were changed by the force of public opinion so as to condemn slavery, the English courts were justified in applying the modern rules of international law: Bernard and Sir H.
Again, the extent of territorial waters varies from time to time according to the rule of international law current at the time, and the courts will apply it accordingly: Kent Justices, Ex parte Lye  2 Q. The bounds of sovereign immunity have changed greatly in the last 30 years. The changes have been recognised in many countries, and the courts — of our country and of theirs — have given effect to them, without any legislation for the purpose.
Seeing that the rules of international law have changed — and do change — and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from lime to time, do form part of our English law. It follows, too, that a decision of this court — as to what was the ruling of international law 50 or 60 years ago — is not binding on this court today.
International law knows no rule of stare decisis. A century ago no sovereign state engaged in commercial activities. It kept to the traditional functions of a sovereign — to maintain law and order — to conduct foreign affairs — and to see to the defence of the country. It was in those days that England — with most other countries — adopted the rule of absolute immunity.
It was adopted because it was considered to be the rule of international law at that time. In The Parlement Belge 5 P. The rule was stated by Dicey in his work on Conflict of Laws, and repeated religiously by the judges thereafter.
Cristina The Cristina  A. That doctrine was repeated by Viscount Simonds in Rahimtoola v. Nizam of Hyderabad  A. He treated it as if it was a rule of English law, fixed and immutable, not to be departed from, even by the House of Lords itself. In the last 50 years there has been a complete transformation in the functions of a sovereign state.
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