A Review of Director of S.S.S. V. Agbakoba
The Supreme Court is the highest court in Nigeria. Being the highest court in the land its decisions are final. The finality of its decision is given constitutional expression in Section 235 of the Constitution of the Federal Republic of Nigeria 1999 which provides that:
“235. Without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any other body or person from any determination of the Supreme Court.”(1)
Judicial expression has also been given to the finality of the decision of the Court in the case of Architects Registration Council V. Fassassi (NO. 4) (2) where ESO J.S.C said:(3) “In the Supreme Court, the decision of that Court in so far as that case is concerned is final for all ages…it is final in the sense of real finality. It is final forever. Only a legislation ad hominen can alter it.”
But does the fact of the finality of the decisions of the Supreme Court make the Justices of the Court super men who are infallible in the decision which they give? The late doyen of the Bar, Chief F.R.A Williams, S.A.N was the first to throw up this question when he was faced with a decision of the Court which he believed was wrong and therefore brought an application seeking a “Correction” of the perceived errors in the Judgment ESO J.S.C. gave a qualified affirmative answer to the question. He said:
“…the decision of the Supreme Court is final.
The Supreme Court, and it is only the Supreme Court, may depart from the principle laid down in their decision in the case in future cases, but that does not alter the rights, privileges or detriment to the parties concerned, arising from the original case. Such is the constitutional power of the Supreme Court that learned counsel, probably rightly, wondered if the Justices of the Supreme Court were supermen. Let me answer the question. The Supreme Court, deliberately meant and made to be so by the organic law, and the Justices of the court, now only to that extent of their decision are supermen, meant to be so and so made by the constitution”(5)
His Lordship, after making the tendentious statement contained in the passage quoted above then conceded the fallibility of the court when he said:(6)
“Of course, neither the Court nor the Justices are meant to, or could even be infallible. But the price paid for finality in litigation is that the notion or the dread of infallibility has been sacrificed by the Constitution on the altar of finality. The society can never be stable if there is no such finality in litigation. It is, I very respectfully hold, desirable to have such finality. Notwithstanding the price paid for it.”
Before we make any deductions from the statements contained in the passages quoted above it will be useful to make a quick reference to the provision of Section 287 (1) of the Constitution which provides that:
“The decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court”.
Three points appear in bold relief from the passages and constitutional provisions quoted above. These are that:
(a) The Supreme Court being the final court in the land ought or is expected to lay down principles of law in their decisions which would guide future cases.
(b) The decisions of the court are binding on all authorities and persons and courts with subordinate jurisdiction to that of the court, and
(c) The principles laid down by the Supreme Court in its decisions can only be altered by a legislation ad hominen and by the Supreme Court itself in future cases.
In the present exercise of “case review”, a critical look would be taken at the decision of the Supreme Court in the case of Director of State Security Service V. Olisa Agbakoba with a view to seeing whether any specific principle or principles were laid down by the court which inclined the Judgment of the court to the conclusion reached in the case. Before we go into the review, let us briefly examine the definition of ‘principles of law’ as given by the Supreme Court. Thus in Ojegele V. State, (7) Oputa J.S.C, whilst discussing the distinction between ‘Principles’ and ‘Rules’ said:
“Principles are broader statements of conduct and they do not necessarily decide the outcome of the dispute. They merely incline the decision one way or the other depending on the facts and surrounding circumstances of the case in hand. The word principle is from the Latin principium, which means the starting point. A principle merely furnishes a basis for the consideration of the case in which the principle is meant to apply. Principles merely incline the decision towards a certain direction but they are not conclusive and they survive intact even if the principles are not followed in that particular case. Rules apply in an all-or-nothing dimension. Either the decision falls within the ambit of the antecedent portion of the rule in which case it must be dealt with as the rule dictated or it does not in which case it is unaffected by the rule. Rules dictate results come what may but principles do not. And that is the main difference to bear in mind when dealing with principles.”
The foregoing definition of ‘principle’ would be used as a guide in the review of the case to be reviewed herein, that is, Director of State Security Service V. Olisa Agbakoba (9) The relevant facts are these. The Respondent, Olisa Agbakoba, was invited by the Netherlands Organization for International Development and Cooperation (NOVIB) to attend a conference which was scheduled to take place between 22nd and 25th April, 1992. On 21st April, 1992, he went to Murtala Muhammed International Airport, at Ikeja Lagos with a view to traveling to The Hague in the Netherlands. However, he could not board the plane because he was stopped by officers of the Nigerian State Security Service (SSS) who impounded his passport without giving any reason for the seizure. After fruitless efforts to regain the passport, the Respondent instituted a suit under the Fundamental Rights (Enforcement Procedure) Rules seeking inter alia:
“1. A Declaration that the forceful seizure of the applicant’s passport No. A 654141 by agents of the State Security Services (Sic) (1st Respondent herein) on April 21, 1992 is a gross violation of the applicant’s right to personal liberty, freedom of thought, freedom of expression and freedom of movement respectively guaranteed under Section 32, 35, 36 and 38 of the Constitution of the Federal Republic of Nigeria 1979 (as amended) and is accordingly unconstitutional and illegal.
2. An order of mandatory injunction directing the respondents to release applicant’s passport No. A 654141 to him forthwith.”
The application which was filed in the High Court of Lagos State went before Akinboboye J. who refused it on the ground that the Respondent failed to satisfy the court that the passport was his personal property, and that the passport referred to the holder as “the bearer” and not “the owner”. Aggrieved by the decision, the Respondent appealed to the Court of Appeal which allowed the appeal and granted the two reliefs earlier set out. Being dissatisfied with the Judgment, the Appellants appealed to the Supreme Court. The important issue which the court has to determine in the case was whether the seizure of the Respondent’s passport by officers of the S.S.S. was in contravention of his right to freedom of movement as guaranteed by Section 38 (1) of the 1979 Constitution which was then in force in Nigeria. In determining this issue the court necessarily had to decide whether possession of a passport is a right or a mere privilege which could be withdrawn by the Government in view of the decision of the trial court that the Respondent did not satisfy it that the passport was his personal property. At the Court of Appeal, Ayoola J.C.A (as he then was) who delivered the leading Judgment of that court had this to say on the point:
“In so far as passport is a certificate of identity and nationality and at the same time a request from one state to another to grant entry to the bearer, it stands to reason that a passport is normally an essential document in the exercise of the discretion by a foreign state, which at International law it has in the reception of aliens into its territory. To that extent a passport is normally an essential document for entry into foreign countries….I also hold that the possession of a passport in modern times makes exit out of Nigeria possible … the issue that follows from this conclusion is whether the possession of a passport or its withdrawal has any relevance to the constitutionally guaranteed freedom of movement, including the right of exit from Nigeria, with which this case is directly concerned….it can thus be seen that while the seizure of passport by a government agency such as the 1st Respondent can be interpreted as a direct expression of refusal of exit to the citizen, it is also a potent curb on the desire of the citizen to travel abroad and an evident clog on the exercise of his right of freedom of movement.”
Thus in the view of His Lordship there is a conflict in the statement endorsed on Nigerian Passports that the Passport remains the property of the Government of the Federal Republic of Nigeria and the right which accrues to every citizen to hold such a Passport. The consequence of a passport being the property of the Government is, according to His Lordship, that the holder cannot deal with it as he pleased. He cannot transfer, sell or otherwise dispose of it. If for instance he ceases to be a citizen of Nigeria, he has an obligation, if requested, to return it to the ‘owner’, and the Nigerian Government as the owner of the passport has a right to recover the passport from anyone else who is not entitled to hold it. His Lordship then concluded that:
“The freedom of exit guaranteed by our constitution cannot be exercised without a passport and that freedom enshrined in Section 38 (1) of the Constitution carries with it a Concomitant right of every Citizen of Nigeria to a passport.”
Although the Judgment of the Court of Appeal that the seizure of the Respondent’s Passport amounted to a violation of his right to travel abroad guaranteed by Section 38 (1) of the Constitution was upheld by the Supreme Court, the leading Judgment of the apex court delivered by UWAIS C.J.N walked through a different route to arrive at the same answer. At page 352 of the report UWAIS, C.J.N said:
“In determining the issues in the present case, it is not, with respect, necessary to indulge in the academic exercise of whether the right to travel abroad is concomitant with the right to hold a passport. The real issue in contention here is not whether the respondent had a right to hold a passport. He in fact had a passport already but which was impounded by an official of the SSS. It is whether such an act by the official was legal and constitutional.”
After an exhaustive review of the arguments of Counsel in the case and the passage in the Judgment of the Court of Appeal quoted above, the C.J.N concluded that the official of the SSS concerned in the case had no power to impound or withdraw the Respondent’s passport in the manner he did. The impounding was, illegal since it offended the provisions of Section 38 Subsection (1) of the Constitution 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, according to His Lordship, guaranteed by the Constitution but the right to hold a passport is subject to the provisions of the Act. Although the leading Judgment of the court considered the question whether the right to travel abroad was concomitant with the right to hold a passport as posited by the Court of Appeal to be an academic exercise for the purpose of the case, the concurring Judgments of Ogundare, Ogwuegbu, and ONU, JJ.S.C agreed with the Court of Appeal (per Ayoola, J.C.A as he then was) that the right to hold a passport is concomitant with the guaranteed right to travel abroad. Thus, to the extent that only three out of the seven Justices of the court that sat on the case agreed with the Court of Appeal on this point, the view that the right to hold a passport is concomitant with the right of exit from Nigeria which was guaranteed by Section 38 (1) of the 1979 Constitution (now Section 41(1) of the 1999 Constitution) was an obiter dictum.
It is respectfully submitted that the minority approach to the resolution of the issue at stake in the case is preferable. Although it is true, as has been said in the leading Judgment of the Supreme Court, that the Respondent had a Passport already but that fact cannot, without more, diminish the importance of the need to make a pronouncement on the right to hold a passport in a case of this nature. It is from such a pronouncement that the principle would emerge which would furnish the basis for the consideration of the facts of the case. As OPUTA, JSC put it in Ojegele V. The State (II), principles are broader statements of conduct and they do not necessarily decide the outcome of the dispute. They merely incline the decision one way or the other depending on the facts and surrounding circumstances of the case in hand.
As has been shown earlier, both the Supreme Court and the Court of Appeal arrived at the same decision that the seizure of the Respondent’s Passport was in contravention of Section 38 (1) of the 1979 Constitution and therefore was unconstitutional, however, no principle can, with respect, be deduced from the leading Judgment of the Supreme Court which could be said to have inclined the decision towards the direction of the conclusion arrived at in the case. The provisions of the Passport (Miscellaneous Provisions) Act which formed the main plank of the leading Judgment of the court cannot be construed in vacuo or in isolation of other issues which arose from the contentious positions taken by the opposing sides in the case. The Act deals specifically with the power of the Minister of Internal Affairs to cancel, or withdraw any passport issued to any person. The Act did not however provide that the power of cancellation or withdrawal which was vested in the Minister shall be exclusive of other general power of cancellation or withdrawal which the Federal Government, the avowed “owner” of the passport or any of its other agencies, may wish to exercise. It is this latter fact that, in our view, justifies the consideration of the question whether the Federal Government or any of its agencies, to wit, the State Security Service, can in exercise of its general right of “ownership” of the passport issued to a citizen withdraw same from the ‘bearer’ of it. A pronouncement made by the court on such a point, cannot, with respect, be said to be academic.
From the analysis of the entire Judgment in Agbakoba’s case, it can safely be concluded that the case would be a good authority for the following proposition; that is:
(a) The right to travel outside Nigeria is constitutionally protected.
(b) The right to hold a Passport is not absolute as it is subject to the provisions of the Passport (Miscellaneous Provisions) Act which empowers, in its Section 5, the Minister of Internal Affairs to, at any time, cancel or withdraw any passport issued to any person if:
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(a) The passport is obtained by fraud;
(b) The passport has expired;
(c) A person unlawfully holds more than one passport at the same time;
(d) It is in the public interest so to do.
The obiter dictum that possession of a passport is concomitant with the guaranteed right of exit from Nigeria would appear to provide a persuasive authority for the proposition that a Citizen of Nigeria who has been denied the issuance of a standard Nigerian Passport can compel its issuance if he desires to travel abroad. The argument in such a case would be that the right to exit from Nigeria which is constitutionally protected by Section 41 (1) of the 1999 Constitution carries along with it a concomitant right to hold a passport and that Section 5 of the Passport (Miscellaneous Provisions) Act even though it authorizes the withdrawal of a passport subject to certain conditions does not authorize the refusal to issue one in the first instance.
1. See Section 235 of the Constitution of the Federal Republic of Nigeria 1999.
2. (1987) 3 NWLR (Part 59) 42
3. Ibid at page 46.
4. Adigun V. Attorney-General of Oyo State No. 2 (1987) 2 NWLR (Part 56) 197.
5. Ibid at page 215
6. Ibid at page 215
7. (1988) 1 NWLR (Part 71) 414
8. Ibid at page 423
9. (1999) 3 NWLR (Part 595) 314
10. Agbakoba V. Director, SSS (1994) 6 NWLR (PT. 351) 475
11. Supra at 423
ABOUT THE AUTHOR: Tayo Oyetibo, SAN
Tayo Oyetibo is Chief Counsel at the law firm of Tayo Oyetibo & Co.