EAST AFRICAN DEVELOPMENT BANK V. BLUELINE ENTERPRISES LIMITED, COURT OF APPEAL OF TANZANIA, DAR ES SALAAM (2011).

Sh 15,000.00

Immunity of the East Africa Development Bank – absolute immunity of an international organisation – legal process includes execution proceedings – qualified immunity –  doctrine of absolute sovereign immunity versus the doctrine of sovereign immunity – principle of functionality – courts interference with exercise of sovereign powers – courts should not impose constrained interpretations on treaties on the basis of fanciful reasons – res judicata and change of law – statutory interpretation – ordinary meaning rule – dictionaries play an important role in statutory interpretation – assets include money – bank account of an embassy and sovereign purposes.

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Description

  • In as far as the East African Development Bank (EADB) enters a transaction in the exercise of its lending powers, it has absolute immunity from every form of legal process.
  • The term legal process includes execution proceedings.
  • The EADB has qualified immunity in respect of cases arising out of its exercise of borrowing powers.
  • Doctrine of absolute sovereign immunity versus the doctrine of sovereign immunity.
  • Immunity of international organisations is based on the principle of functionality – proper determination of this immunity should be based on the organisation’s constitutional instrument – the immunity is not based on the traditional doctrine of sovereign immunity.
  • The member states have full sovereignty to grant such privileges and immunities to the organisation as they deem it proper for the purpose of achieving its objectives.
  • The courts should always be loath to interfere with the States transparent exercise of their sovereign powers or impose constrained interpretations on such treaties on the basis of fanciful reasons.
  • Res judicata – previous proceedings were based on three pieces of legislations while subsequent proceedings were based on provisions of an amended Act – no res judicata.
  • It is very easy in the forest of precedents to not see the wood for the trees.
  • If a law is altered by the passing of a new Act after a decision has been made in a case, the doctrine of res judicata does not arise.
  • Where as a result of a change of law, new rights are conferred on parties, such rights are not barred by res judicata by decisions given before the new law came into force.
  • Where a proceeding applied to a different set of circumstances, it could not be defeated by a plea of res judicata.
  • Court determined a decisive issue which altered the outcome of the case without hearing parties on that issue – the ruling is a nullity.
  • Statutory interpretation – our first assumption in reading the words of any text is that the author is using them in their ordinary meaning.
  • Statutory interpretation – the courts under the ordinary meaning rule of statutory construction are obliged to determine the ordinary meaning of the words to be interpreted and to adopt this meaning in the absence of a reason to reject it in favour of some interpretation.
  • Dictionaries play an important role in statutory interpretation – they offer a useful starting point which is tangible and objective.
  • Asset or assets include money, be it cash held in hand and or held in a bank.
  • It is an established principle of international law that monies of an entity subject to immunity held in a bank are capable of being immune from attachment – the principle even extends to mixed bank accounts.
  • A bank account used to cover the day to day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures.

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