Avionics v. Nigeria [2016] EWHC 1761 (Comm)

L R Avionics Technologies Ltd v. The Federal Republic of Nigeria and Attorney General of the Federation of Nigeria 

In this case Mr Justice Males had to decide whether property belonging to the Federal Republic of Nigeria that is being leased to a privately owned company (Online Integrated Solutions Ltd or “OIS”) was immune from the execution processes of the English courts pursuant to s. 13(2) of the State Immunity Act 1978 or whether it was caught by the “commercial purposes exception” to immunity pursuant to s. 13(4) of the Act. The matter was complicated by the fact that OIS provides Nigerian visa and passport services on behalf of the High Commission from the leased premises.

The Court in deciding to what use is the property being put held that primary consideration must be given to the nature or character of the relevant activity that is actually being done on the property. The fact that the property is being used for a consular activity – the handling of passport and visa applications – meant that it involved the performance of a “public function” on behalf of the defendant State, regardless of whether the function is being carried out by the State itself or, as in this case, by an agent to whom performance of the function has been delegated. This non-commercial character of the activity is not affected by the fact that the property generates an annual rent of £150,000 for the State nor is it affected by the existence of a contract between the Nigerian High Commission and OIS for the supply of services.

Accordingly, the Court held that the Fleet Street property did not fall within the scope of the “commercial purposes” exception and that it enjoyed immunity from execution pursuant to s. 13(2). The Court thus set aside a charging order that had earlier been granted in relation to the property.

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