i m m u n i t i e s f r o m j u r i s d i c t i o n
729
Nigeria
170
cautioned against too facile an attribution of immunity par-
ticularly in the light of the growth of governmental functions, since its
acceptance resulted in a significant disadvantage to the other party.
A department of government would, however, be entitled to immu-
nity, even if it had a separate legal personality under its own law.
171
The
issue was discussed in detail in the
Trendtex
case. It was emphasised that
recourse should be had to all the circumstances of the case. The fact of in-
corporation as a separate legal identity was noted in
Baccus SRL
v.
Servicio
Nacional del Trigo
172
and both Donaldson J at first instance and Denning
MR emphasised this.
173
The question arises in analysing whether a body
is a corporation or not, and indeed whether it is or is not an arm of
government, as to which law is relevant. Each country may have its own
rules governing incorporation, and similarly with regard to government
departments. Should English law therefore merely accept the conclusions
of the foreign law? The majority of the Court in
Baccus
was of the view
that foreign law was decisive in questions relating to incorporation and
whether corporateness was consistent with the recognition of immunity,
and to a certain extent this was accepted in
Trendtex.
Shaw LJ declared
that ‘the constitution and powers of Nigerian corporation must be viewed
in the light of the domestic law of Nigeria’.
174
However, the status on the
international scene of the entity in question must be decided, it was held,
by the law of the country in which the issue as to its status has been raised.
The Court had to determine whether the Nigerian Bank could constitute a
government department as understood in English law.
175
It was also noted
that where a material difference existed between English law and the for-
eign law, this would be taken into account, but the Court was satisfied
that this was not the case in
Trendtex.
This position of pre-eminence for English law must not be understood
to imply the application of decisions of English courts relating to immu-
nities granted internally. These could be at best only rough guides to be
utilised depending on the circumstances of each case. If the view taken by
the foreign law was not conclusive, neither was the attitude adopted by the
foreign government. It was a factor to be considered, again, but no more
than that. In this, the Court followed
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