Alamieyeseigha, R (on the application of) v Crown Prosecution Service

A constituent state of a federation may, in principle, qualify for state immunity even if it lacks power to conduct international relations. Whether it does so is a case-sensitive question.

The court must consider the constitutional allocation of governmental functions, the entity’s autonomy, the position of the federal government and, of decisive importance, the United Kingdom Secretary of State’s certificate under the State Immunity Act 1978. Where the sub-state lacks international personality, has substantially limited and subordinate powers, and the certificate identifies the federation—not the sub-state—as the relevant state, immunity will not arise.

The claimant, Governor and Chief Executive of Bayelsa State, sought judicial review to quash criminal proceedings brought by the Crown Prosecution Service for alleged money laundering and handling the proceeds of criminal conduct.

He argued that Bayelsa State was entitled to state immunity and that he consequently enjoyed immunity as its Governor. The CPS relied on Bayelsa’s status as a constituent territory of Nigeria and on a certificate issued by the Secretary of State under section 21 of the State Immunity Act 1978. The central issue was whether Bayelsa State was entitled to state immunity in criminal proceedings.

1. The claim was dismissed. The claimant’s immunity depended on whether Bayelsa State itself was entitled to state immunity.
2. A federal sub-state may, in principle, qualify for immunity even without power to conduct international relations. Mellenger v New Brunswick Development Corporation [1971] 1 WLR 604 was binding authority to that effect. The absence of international-relations power was nevertheless a powerful factor against immunity.
3. The court treated the Secretary of State’s certificate under section 21 of the State Immunity Act 1978 as decisively important in determining entitlement to immunity in criminal proceedings. The certificate identified Nigeria as the state and Bayelsa as a constituent territory, and did not identify the claimant as head of Nigeria.
4. The Nigerian Constitution reserved external affairs and other matters associated with sovereignty to the Federal Government. Bayelsa’s powers were also subordinate to federal law, could be affected by a federal declaration of emergency, and had to be exercised without impeding federal executive powers.
5. Those factors showed that Bayelsa had limited and extensively circumscribed powers and could not claim to be a sovereign state for immunity purposes. The claimant therefore had no derivative immunity.
6. The court did not decide waiver definitively. The issue was academic after dismissal of the claim, and full argument had not been heard, although there appeared to be powerful arguments that any immunity could have been waived by the Federation of Nigeria.

Mr Justice Collins agreed with Mr Justice Silber and added that Mellenger was fact-sensitive and did not determine the position of Bayelsa under the Nigerian Constitution.

The matter initially came before the court as a habeas corpus application. It was converted, with the CPS’s consent, into a judicial review claim seeking to quash the decision to prosecute. The judgment is a first-instance decision.