Commercial Law

Court declares seizure of couple’s passports by NIS Illegal, gives seven day ultimatum for release

A High Court of the Federal Capital Territory sitting in Bwari, presided over by Hon. Justice Othman A. Musa, has ordered the Nigeria Immigration Service to release, within seven days, two Nigerian passports seized from Mr. and Mrs. Udoh Anietie Udoeyen since 2018, the Applicants before the Court.

In separate judgments delivered on 3rd December, 2020, in Suit No. FCT/HC/BW/CV/189/2020, Mr. Udoh Anietie Udoeyen V. Nigeria Immigration Service and Suit No. FCT/HC/BW/CV/190/2020, Mrs. Udoh Alice Udoeyen v Nigeria Immigration Service, the Court declared that the detention of the Applicants’ passports by the Respondent since 2018 constitutes a breach of their rights to fair hearing and freedom of movement, and therefore unconstitutional.

In the applications filed by their lawyers, Auxano Law, the Applicants sought to enforce their rights to fair hearing and freedom of movement guaranteed under sections 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999. The Applicants who attended interview at the US Embassy for non-immigrant visa on 18th September, 2018 had their passports transferred to the Respondent “for further review”.

This was based on suspicion that Ghana entry stamps on them were fake. Since then, the Respondent detained the passports without confronting the Applicants with the allegation despite several letters of demand for their release by their solicitors, Auxano Law. The couple maintained in their affidavits that the Ghana entry stamps on their passports were genuine.

At the hearing of the two suits, Applicants’ counsel, Chijioke Emeka, argued that the Applicants have the right to be heard on the allegation before being subjected to the illegal punishment of seizure of their passports. Emeka argued that the failure of the Respondent to confront them with the allegation or charge them for an offence known to law before detaining the passports is a breach of their constitutional right to fair hearing and freedom of movement as the right to a passport is ancillary to the constitutional right of ingress and egress from Nigeria.

Respondent’s counsel, N. B. Kannap, who made an oral submission, contended that a passport is a privilege that can be taken away by the Federal Government at any time, and that the Respondent is keeping the passports because it is investigating an allegation of fraud levelled by the US Embassy and intends to subsequently prosecute the Applicants. He relied on sections 10(1)(b), 15(4) and 59 of the Immigration Act on statutory powers of the Respondent.

But the trial Judge, Justice Musa agreed with the Applicants that possession of Nigerian passport is not a privilege but an ancillary right to the right to freedom of movement. Thus, withdrawal of a passport can only be done in line with the law. It was therefore held that the right to hold a passport being a constitutional right, it is unconstitutional to deprive a person of his passport without legal justification. Although the Court affirmed the power of the Respondent to investigate immigration offences, it found that the power does not include arbitrary seizure or withdrawal of a passport, as only the Minister can withdraw a passport under circumstances permitted by law.

The detention of the Applicants’ Nigerian passports in the circumstances was declared a violation of the Applicants’ right to fair hearing and right to freedom of movement in and out of Nigeria.

The Court ordered that the passports be released to the Applicants within seven days and ordered the sum of N1,000,000 to be paid by the Nigeria Immigration Service to each Applicant as general damages.

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