DOES THE SEIZURE OF A FOREIGNER'S PASSPORT AMOUT TO A BREACH OF HIS FUNDAMENTAL HUMAN RIGHTS UNDER THE NIGERIAN CONSTITUTION? - Welcome to Lumenar's blog

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Tuesday, 7 July 2020

DOES THE SEIZURE OF A FOREIGNER'S PASSPORT AMOUT TO A BREACH OF HIS FUNDAMENTAL HUMAN RIGHTS UNDER THE NIGERIAN CONSTITUTION?





Chinecherem Ubaka


The Passport (Miscellaneous Provisions) Act was enacted to create certain offences and their punishment with regards to Passports. Sec 1(1) of the said act, creates the offences. By virtue of Sec 5 and 6 of the Passport (Miscellaneous Provisions) Act, the Minister of  Internal Affairs, has the power to withdraw a citizen's passport under certain conditions. The conditions are: 
a. If the foreigner is an illegal immigrant.
b. If the Passport was obtained by fraud.
c. If the person concerned is in possession of more than one passport at the same time.
d. If it is in public interest
e. If the Passport is expired.

Where the above condition(s) are met, the Minister can seize ANY Passport issued to ANY person. Only the Minister of Internal Affairs is authorised to cancel or withdraw a citizen's Passport, a fortiori, a foreigner. 

So does the seizure of the passport of a foreigner by the amount to a breach of his/her fundamental human rights under the Constitution?
Let's look at the case of Mr. Carl De Beer v. Nigerian Aviation Handling Company Plc (NAHCO) & ors,  (2018) 16 W.R.N, the applicant is a South African living in Nigeria. He is a Mechanical/Electrical Engineer. He had contractual disputes with the respondent and so he was called upon for meeting to resolve the issue. At the venue of the meeting, the applicant was rounded up by members of staff of the respondent and his International passport was seized after a tussle. Consequently, he instituted an action at the Federal High Court, Lagos via Originating Motion. Subsequently, he filed a statement of claim where he claimed the return of his international passport, damages of five hundred million naira for general damages and two hundred thousand naira as cost of the suit against the respondents for violation of his rights guaranteed under the 1999 Constitution, he also filed several documents and a written address. The respondents responded by filing a counter-affidavit, several documents and written address.

The question as to whether a foreigner has the right seek enforcement of his fundamental rights in Nigeria came up. This is because the applicant is a South- African and not a Nigerian. Tsoho J, the applicant has the right to seek the enforcement of his fundamental human rights, if he has genuine grievance.   There is no discrimination between Nigerian citizens and foreigners resident in Nigeria in the enforcement of fundamental rights. It is important to note that the seizure wasn't done by the Minister of Internal Affairs but by officials of the respondent. They claimed that the applicant is an illegal immigrant. However, the court stated that the respondents failed to furnish to the court the basis for stating that the applicant is an illegal immigrant. Furthermore, the court noted that if the respondents are aware that the applicant is an illegal immigrant  and they still freely entered into contractual transaction with him, they are estopped from raising that issue.

The Applicant submitted that the respondents have no power to seize his passport and having done so, they violated the applicant's right to life, property, dignity and freedom of movement. As an alien, it is not possible for the applicant to move freely in and out of Nigeria without a passport and that he cannot also secure a job. He further asserted that the seizure of the passport is a denial of his right to life especially as his right to life is not limited to  merely living but extends to other things that make life comfortable. The Court held that " the 1st-4th Respondents have exhibited gross insensitivity to the plight of the applicant. They have imposed confinement of the applicant since 17th, 2012; being slightly more than two(2) years ago, when they forcefully seized his passport. This is ispite of the applicant'ts serious impaired health to the knowledge of the respondents. Consequently, the applicant was deprived of attending his mother's burial, he and his family were subjected to penury and poor feeding... The Court went ahead to award the applicant the sum of 100,000,000 as compensatory damages against the respondents alongside cost of the suit".

The court in lines 15-25 of the case agreed with the applicant's submission that the right to life includes the right to live with human dignity and all that goes with it, namely; the bare necessity of life, such as adequate food, nutrition, clothing and shelter over head, to that extent. So yes, the unauthorized seizure of a foreigner's passport is a violation of his/her fundamental rights to life, human dignity and movement.




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