Nigeria: Case Review: Director of SSS V. Agbakoba

Published: 11/Jun/2015

By Tayo Oyetibo, SAN

Constitutional Law – International Passport: Power of Minister of Internal Affairs – Constitutional Law – Fundamental Human Rights: Extent of the powers of State Security Service – Constitutional Law – Fundamental Human Right: Freedom of Movement – Right of Nigerian Citizen to hold International Passport: Whether Absolute. The Supreme Court: Whither the Principles:
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.”


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.”



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:

(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.

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Themes: ID Documents and Passports
Regions: Nigeria
Year: 2015