The Court of Appeal addressed issues of sovereign immunity and the methods of service of court documents in foreign jurisdictions. The court upheld that President Filipe Nyusi, as the current Head of State of Mozambique, was entitled to immunity from jurisdiction under the State Immunity Act 1978. Additionally, the court examined whether service of the Part 20 Claim in Mozambique had been validly executed under the English Civil Procedure Rules.

Background:

The litigation stemmed from claims brought by the Republic of Mozambique against Privinvest Shipbuilding SAL (“Privinvest”) and others, alleging that sovereign guarantees were fraudulently obtained. In response, the appellants issued a Part 20 Claim against President Nyusi, seeking damages for deceit based on his alleged involvement in these activities. This appeal followed a lower court’s decision declaring that President Nyusi was not validly served with court documents in 2021 by way of service to the Presidential Palace, and retained immunity under international law.

The appellants, Privinvest and others, argued that the service of court documents at the Presidential Palace and the Office of the President in Mozambique in October 2021 constituted valid service under Civil Procedure Rules (“CPR”) 6.42(3)(a). They contended that “direct service” as referenced in this rule could be affected at the respondent’s usual residence, in this case, the Presidential Palace. The appellants relied on earlier judicial interpretations suggesting that service could align with other provisions under the CPR, such as leaving documents at a defendant’s residence. Additionally, they argued that the subsequent acknowledgment of service by Mozambique’s judicial authorities in April 2023 was unnecessary and that their earlier attempts should have been deemed sufficient. On the issue of immunity, the appellants claimed that sovereign immunity under Section 20 of the SIA does not extend to purely personal or commercial acts undertaken by a Head of State. They asserted that immunity should be confined to official state functions and that any acts performed by the respondent before his presidency, particularly fraudulent or deceitful commercial activities, fell outside the protective scope of sovereign immunity.

The respondent, President Nyusi, maintained that the purported service in October 2021 was invalid as it did not comply with Mozambique law or the requirements of CPR 6.42. His counsel emphasized that the correct process for serving documents in Mozambique involved judicial authorities and that failure to follow this procedure rendered the service defective. On the issue of immunity, the respondent asserted that as a sitting Head of State, he enjoyed absolute immunity from the jurisdiction of the English courts under Section 20 of the SIA – this immunity extended to all acts, whether official or personal, while serving in office. The respondent further contended that international customary law recognises the broad scope of immunity afforded to Heads of State, reflecting principles of sovereignty and state dignity.

Court’s Decision:

The Court of Appeal ruled in favour of the respondent, upholding the lower court’s findings on both the service and immunity issues. Particularly:

1. Regarding the validity of service, the court held that the appellants failed to comply with the procedural requirements under CPR 6.42(3)(a). The court reasoned that Mozambique, as a Commonwealth state not party to the Hague Convention, requires service to be affected through its judicial authorities in accordance with established procedures. While the appellants left documents at the Presidential Palace and the Office of the President in October 2021, this was not deemed a permissible method of service under Mozambique law. The court further noted that the burden of proving valid service rested on the appellants, who failed to provide evidence that their method of service was lawful under local requirements. The court concluded that service was validly affected only in April 2023 through Mozambique’s judicial authorities.

2. On the issue of sovereign immunity, the court reaffirmed the broad protections afforded to Heads of State under Section 20 of the SIA. It rejected the appellants’ argument that the immunity should be confined to official acts, finding that the statute explicitly incorporates customary international law, which extends immunity to both official and personal acts of a sitting Head of State. The court emphasized the principle that immunity reflects the sovereign status and dignity of a Head of State, ensuring they are not subject to judicial process in foreign jurisdictions. It also dismissed the appellants’ argument for a “necessary modification” of the immunity provisions to exclude personal or commercial acts outside the United Kingdom. The court noted that such an interpretation would undermine the clarity and intent of Parliament when enacting the statute.

Ultimately, the Court of Appeal concluded that President Nyusi was entitled to immunity from jurisdiction and that the English courts lacked authority to hear the claims against him.