I just randomly remembered the case Olisa Agbakoba had with the DSS and how it later turned out to be one of the most outstanding landmark decisions of the Supreme Court.
Let me tell you an interesting story.
Sometime in 1992, Dr. Olisa Agbakoba (SAN), a prominent human rights activist and President of the Civil Liberties Organisation (CLO), arrived at the Murtala Mohammed International Airport in Lagos to board a flight to The Hague, Netherlands, where he had been invited to attend an international human rights conference.
Before then, he had become one of the fiercest critics of General Ibrahim Babangida’s regime over its human rights abuses and arbitrary detentions.
As Dr. Olisa Agbakoba prepared to board his flight, officers of the State Security Service (DSS) intercepted him, seized his international passport without giving any reason, and prevented him from traveling.
He made several attempts to retrieve his passport from the DSS, then led by Chief Albert Horsfall, but all efforts proved unsuccessful.
Left with no other option, he approached the Lagos State High Court to enforce his fundamental rights.
Justice Akinboboye of the Lagos State High Court heard the case and dismissed it.
What was the reason for the dismissal?
According to the judge, holding an international passport was merely a privilege, not a constitutional right.
Unwilling to accept that decision, Olisa Agbakoba appealed to the Court of Appeal. After reviewing the case, the Court of Appeal ruled in his favour and ordered the DSS to return his passport.
The DSS refused.
Instead, it appealed to the Supreme Court.
The DSS and the Attorney-General of the Federation, Chief Clement Akpamgbo (SAN), argued that every Nigerian passport clearly bears an inscription stating that it remains the property of the Federal Government and may be withdrawn at any time.
They further argued that the issuance or possession of a passport is an exercise of executive discretion and a privilege granted to a citizen, not a fundamental right expressly guaranteed by the Constitution.
Olisa Agbakoba, on the other hand, presented an outstanding argument.
He argued that every Nigerian citizen, under Section 38 of the 1979 Constitution, now Section 41 of the 1999 Constitution, has a constitutional right to freedom of movement.
He further argued that the constitutional right to leave and enter Nigeria cannot be practically exercised without an international passport.
Therefore, the right to hold a passport is a necessary and inseparable part of that constitutional freedom.
He also convinced the Supreme Court that under Section 5(1) of the Passport (Miscellaneous Provisions) Act, only the Minister of Interior has the legal authority to withdraw or cancel a citizen’s passport, and even then, such power can only be exercised on grounds such as fraud, expiration, or specific public interest.
The Supreme Court, in a judgment delivered by Justice Mohammed Lawal Uwais, carefully considered the arguments and sided with Olisa Agbakoba.
According to the Supreme Court, the constitutional right to travel abroad cannot be effectively exercised without a passport.
Therefore, an unjustified seizure or denial of a passport amounts to a direct and unlawful violation of a citizen’s constitutional right to freedom of movement.
The Court further explained that, under the Passport Act, only the Minister of Internal Affairs possessed the legal authority to withdraw or cancel a passport, not the DSS.
The DSS, therefore, acted completely ultra vires—beyond its legal powers—by arbitrarily seizing Dr. Agbakoba’s passport.
In the end, the Supreme Court ordered the DSS to immediately return his passport.
Till today, that judgment remains one of the most celebrated constitutional decisions in Nigeria. It firmly established that although a passport is physically the property of the Federal Government, the right to hold and use it is a concomitant constitutional right directly linked to the fundamental right to freedom of movement, not an arbitrary executive privilege.
Lawyers still cite the decision as Director of State Security Service & Anor v. Olisa Agbakoba (1999) 3 NWLR (Pt. 595) 340.
I am Ekene Aninze, Esq.
