The incidence has generated controversy with lingering argument that the action of NIS contravened the rights to movement of Odele. The purpose of this write up, therefore, is to attempt a dispassionate analysis of the law to see if NIS can really be legally faulted.

Movement is one of the basic features of living things and hallmark of citizenship. Its primary meaning is the physical movement from place to place and had protection under the constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 41(1) thereof provides inter Alia; “Every citizen of Nigeria is entitled to move freely in any part thereof and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom“

In other words the right to move freely in the country includes right to leave the country to another. Article 12 of the Africa Charter on human and peoples’ rights makes similar provision.

Section 6 of the Passport (Miscellaneous Provisions) Act provides that the word ‘passport’ means “a document of protection and authority to travel issued by the competent Nigerian officials to Nigerians wishing to travel outside Nigeria and includes as defined in subsections (3) and (4) of this Act, the following-”

Section 9(5) of the Immigration Act, 2015, similarly defines ‘passport’ as a “document of protection  and authority to travel  issued by the Nigeria  Immigration Service  to Nigerians wishing to travel outside Nigeria…”

The above definitions are in line with immigration practice in all parts of the world. Being in possession of and producing such passport granted as stated above allows the citizens to leave the country and travel to another country without hindrances. It affords them assistance and protection when traveling in such other country.

The implication is that without a passport, Nigerian cannot travel outside the country. The question then is, is having an international passport a right? The answer to this question may not be easy. However, it is submitted that it is a right.

The right of exit in section 41 of the constitution cannot be exercised without a national passport and that being so, the right to passport is concomitant and inseparable corollary of the right of exit. The right of exit carries with it the rights necessary to its effectiveness and there is a corresponding duty on the State to provide the facilities. That’s the position even in other parts of the world.

In the United Kingdom, for instance, the Court of Appeal observed in R v. Secretary of State, ExParte Everrett (1989) 1 All E. R. 655 at 660.) that “the grant or refusal of a passport (affects) the right of individuals and their freedom to travel” (per Taylor, L. J.)

Also in India, the Supreme Court held that: “possession of a passport is a necessary condition of travel in the international community.” Vide Subba Rao, C. J. in Satwant Singh Sawhney v. Assistant Passport Officer and Ors. (1967) 3 S. C. R. 525.

The Supreme Court of Nigeria made similar pronouncement in the case of Agbakoba v Director or State Security Service (1994) 6 NWLR pt. 351, 475 as follows:

“…possession of a passport makes exit out of Nigeria possible, it follows that without it a citizen of Nigeria cannot enjoy the right of egress from Nigeria given him by section 38(1) (now section 41(1)) of the Constitution. 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.

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.”

The right to movement and exit from Nigeria is not absolute. Section 45 (1) of the Constitution provides that “nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society – (a) in the interest of defence, public safety, public order, public morality or public health: or(b) for the purpose of protecting the rights and freedom of other persons.”

The Passport (Miscellaneous Provisions) Act, 2004; Immigration Act, 2015; and Immigration Rules, 2017 are examples of those laws which are ”reasonably justifiable in a democratic society”.

Thus, by section 5(1) of the Passports Act, section 13(1) of the Immigration Act, and Regulation 42 of the Immigration Regulations, the Minister responsible for passports may, at any time, cancel or withdraw any international passport issued to any person if the passport is obtained by fraud or has expired. Another reason is when person unlawfully holds more than one passport at the same time.

However, none of the above laws make provision for seizing of passport. They all provide only instances when passports of persons can be cancelled or withdrawn. Why the NIS “seized” the passport of Odele is still a mystery.

The only alternative power of NIS is the prohibition of departure. In other words, section 31(2) of the Immigration Act empowers NIS to prohibit exit of person from Nigeria in the following conditions:

if there is to its knowledge an unsatisfied order of a court of competent jurisdiction; or

(2) if there is a warrant of arrest relating to the person seeking to exit

Assuming, but not conceding, that the power under section 31(2) of the Immigration Act above include the power to seize passport of persons, the implication is that passport of an individual cannot be seized at their whims and caprices. They can seize Passports only on any of the above conditions.

From the information available in the public domain, NIS said they seized the passport of Odele as part of “routine assignments” and to enforce restriction “order” but did not disclose whose order they were enforcing. It is submitted that none of the reasons given by NIS satisfies the requirement of section 31(2) of the Immigration Act enumerated above. Consequently, it is our view that the seizure is unlawful and in gross violation of Odele’s right to freedom of movement.

In Agbakoba v Director or State Security Service (1994) 6 NWLR pt. 351, 475, the Supreme Court affirmed the decision of the Court of Appeal which faulted the seizure of the passport of Dr. Olisa Agbakoba (SAN) and held that the seizure infringed on the learned silk’s constitutional right to movement.

The same position taken hin the United States. According to Golberg J in Appatheker v. Secretary of State 378 U.S 500 (1964) stated that the right to travel is part of the liberty of which the citizen cannot be deprived without the due process of law under the 5th Amendment. The court went further:.

“…Freedom of movement across frontiers in either direction and inside frontiers as well, is part of our heritage. Travel abroad, like travel within the country is basic in our scheme of value.”

We commend the opinion of R.F.V Houston, who while commenting on the British position, said “Everyone, High or low, must be prepared to justify his acts by reference to some statute or common law power which authorizes him to act precisely, in the way in which he claims he can act”

With the above commentaries, statutory and judicial authorities, It is our view that the Nigeria Immigration Service has grossly violated Modupe Odele’s constitutional right of movement by seizing her passport. Such power does not exist in the Passport Act or the Nigerian Immigration Act. Such power cannot also be traced to the Immigration Regulations. The power of NIS is to either cancel or withdraw a passport.

Assuming the power of NIS to prohibit exit from Nigeria includes the power to seize Odele’s passport, it is our view that NIS was still legally wrong in view of the fact that the Service did not meet the conditions stipulated in section 31(2) of the Immigration Act.

We draw the curtain by submitting that it will be of great danger to our democratic setting if continuous violation of human rights remains the incessant voice of the government. One can be punished for breaching the law but cannot be punished for something else.