⦿ CASE SUMMARY OF:
Director of State Security Service & Anor. v. Olisa Agbakoba (1999) – SC
by PaulPipar
⦿ PARTIES
APPELLANTS
1. Director of State Security Service
2. Attorney-General Of The Federation
v.
RESPONDENTS
1. Olisa Agbakoba
⦿ CITATION
(1999) 3 NWLR (Pt.595) 3 40;
(1999) LPELR-SC.5/1995
⦿ COURT
Supreme Court
⦿LEAD JUDGEMENT DELIVERED BY:
Muhammadu Lawal Uwais, CJN
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Chief T. Onwugbufor
FOR THE RESPONDENT
⦿ FACT
The respondent’s (Olisa Agbakoba) international passport was seized by the State Security Service on the day that he was about to travel to “The Hague” for a human rights’ conference that he was invited to.
With all necessary means done to get it from them proven abortive, he then filed an action in the high Court of Lagos State. The High Court of Lagos State dismissed his action; the Respondent appealed to the Court of Appeal and his appeal was upheld.
The present Appellant being aggrieved has then appealed this action before the Supreme Court.
⦿ ISSUE
1. Whether the Court of Appeal was right in holding that the right of exit from Nigeria guaranteed by section 38(1) of the Constitution carries with it a concomitant (sic) right to hold or own a passport. Put the other way, does section 38(1) of the Constitution confer an unlimited right on every Nigerian to hold a passport which cannot be withdrawn or canceled or otherwise interfered with.
⦿ HOLDING
Foremostly, the Supreme Court upheld the appeal.
1. On issue 1, the Supreme Court held, “I am satisfied that the official of the SSS concerned in this case had no power to impound or withdraw the respondent’s passport in the manner he did. The impounding was, therefore, unconstitutional and illegal since it offended the provisions of section 38 subsection (1) of the Constitution (1979) and section 5 subsection (1) of the Passport (Miscellaneous Provisions) Act. The right to have freedom of movement and the freedom to travel outside Nigeria is guaranteed by the Constitution but the right to hold a passport is subject to the provisions of the Act.”
⦿ REFERENCED
Section 2 subsections (3) and (4) of the National Security Agencies Act, Cap. 278 of the Laws of the Federation of Nigeria, 1990;
Passport (Miscellaneous Provisions) Act, Cap. 343;
Constitution of the Federal Republic of Nigeria, 1979;
Section 3 of the Ministers’ Statutory Powers and Duties (Miscellaneous Provisions) Act, Cap. 228 LFN 1990;
⦿ SOME PROVISIONS
⦿ NOTABLE DICTA
An originating summons is not the same as writ of summons. In the case of the former no pleadings are employed while in the case of the latter there are pleadings in the form of statement of claim, statement of defence, etc. – Muhammadu Lawal Uwais, CJN. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
The Minister responsible for passport is the Minister of Internal Affairs. He alone can issue a passport or withdraw or cancel a passport already issued. – Salihu Modibbo Alfa Belgore, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
The big issue in this appeal is the: seizure of respondent’s passport by the State Security Service. I find no substance in this appeal because the seizure of the respondent’s passport is ultra vires the powers of the State Security Service. – Salihu Modibbo Alfa Belgore, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
In my respectful view, therefore, to hold or possess a passport is ancillary to the right of egress from Nigeria given in section 38(1). It is, as rightly held by the court below, per Ayoola, JCA (as he then was), concomitant to the right of egress from Nigeria. It is a concomitant right without which the right of egress from Nigeria becomes hollow or empty. – Michael Ekundayo Ogundare, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
That the right to hold a passport is not specifically mentioned in the Constitution is to be expected. One does not expect to find in a Constitution minute details for it is necessarily brief and comprehensive. It prescribes outlines, leaving the filling up to be deduced from the outlines. In setting up an enduring framework of government, the framers of our Constitution undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men and women, those fundamental purposes which the instrument itself discloses. – Michael Ekundayo Ogundare, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
Hence we (the Constitution) read its words, not as we read legislative provisions which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of Government. – Michael Ekundayo Ogundare, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
The courts will give especially broad, liberal construction to those constitutional provisions designed to safeguard Fundamental rights. To construe section 38(1) in a manner to exclude the right to hold a passport, an important travel document without which a Nigerian cannot exit from Nigeria,- and this is the construction the learned Solicitor-General of the Federation urges on us – is to put a close and literal construction on it which deprives it of most of its efficacy and leads to gradual depreciation of the right of exit from Nigeria. – Michael Ekundayo Ogundare, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
Worst of all, there is no scintilla of evidence that the 2nd appellant in seizing respondent’s passport at the Murtala Mohammed Airport on April 21, 1992 did so for any or all or the reasons stated in section 41(1) of the Constitution. Whichever way one looks at it, therefore, the seizure of the respondent’s passport by the 2nd appellant, his servants and/or agents was illegal. – Michael Ekundayo Ogundare, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
The fundamental right of exit from and entry into Nigeria guaranteed by the Constitution will be meaningless if the means to realise it is not equally guaranteed. – Emmanuel Obioma Ogwuegbu, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
It has been an accepted canon in interpretation of documents to interpolate into the text such provision, though not expressed, as are essential to prevent the defeat of their purpose and this applies with special force to the interpretation of Constitutions, which, since they are designed to cover a great multitude of necessarily unforeseen circumstances, are cast in general language which are not constantly amended. – Emmanuel Obioma Ogwuegbu, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
The Constitution of the Federal Republic of Nigeria is a written organic instrument. It is a mechanism under which our laws are made and not a mere Act of Parliament or a Decree which declares what the law is to be. – Emmanuel Obioma Ogwuegbu, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
The decision of the court below therefore that the right to travel abroad cannot be effectively exercised without the Nigerian passport, connotes logically and legally that an unjustified denial of the right to hold a passport, is a denial of the right to travel abroad. It is in this wise that I agree with the respondent that the impounding of his passport by the appellants constitute an infringement of this right because by so doing, the respondent cannot leave the country. – Sylvester Umaru Onu, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
It ought to be borne in mind that an arbitrary discretion of government in respect of issuance, or withdrawal of passport as the appellants contend, is contrary to the principles of our Constitution and the rule of law since any withdrawal of the passport of a citizen must have to be justified. Admittedly and undoubtedly, the rights of exit, and consequently the right to passport, are not absolute. – Sylvester Umaru Onu, JSC. Director of State Security Service & Anor. V. Olisa Agbakoba (1999)
