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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2019-01098
Between
AUSTINE UGONNA OKEKE
Claimant
AND
THE CHIEF IMMIGRATION OFFICER
First Defendant
ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Second Defendant
Before the Honourable Mr. Justice R. Rahim
Date of Delivery: May 1, 2020.
Appearances:
Claimant: Mr. N. Ramnanan instructed by Mr. R. Pandohee
Defendants: Ms. T. Gibbons-Glenn instructed by Ms. S. Dass
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JUDGMENT
1. By Re Re-Amended Fixed Date Claim filed on November 27, 2019,
the
claimant brought proceedings under section 14 of the
Constitution of
the Republic of Trinidad and Tobago (“the Constitution”)
seeking
declaratory relief for alleged infringements under section 4
(a), 4 (g), 5
(2) (c) (ii) and 5 (2) (h) of the Constitution.
2. The claimant is a Nigerian citizen who entered Trinidad and
Tobago
legally on October 1, 2014 and was granted permission upon entry
to
remain until October 9, 2014. It is the case of the claimant
that the
servants and/or agents of the first defendant lacked reasonable
and
probable cause for arresting and detaining him. The claimant is
also
challenging the legality of the decision to seize his passport.
The court
makes no distinction between the defendants for the purpose
of
convenience in the writing of this judgment.
3. The claimant was subsequently placed on repeated orders of
supervision
pending a Special Inquiry. This Special Inquiry would inevitably
be
impacted by the fact that the claimant has an application before
the
UNHCR as an asylum seeker in Trinidad and Tobago. As such,
the
claimant is seeking an order to quash the decision of the
Chief
Immigration Officer (“CIO”) to hold a Special Inquiry.
4. As a consequence, the claimant, seeks:
i. A declaration that the claimant is a national of the
Federal
Republic of Nigeria and a registered Asylum Seeker with the
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United Nations High Commissioner for Refugees in Trinidad
and
Tobago;
ii. A declaration that the seizure and impounding of the
claimant’s
Nigerian passport No. A05611036 by the Defendant its
servants
and/or agents amounted to an abuse of powers, was illegal
and
contravened his rights guaranteed under the Constitution
namely:
a. The right of the individual to life, liberty, security of
the
person and enjoyment of property and the right not to be
deprived thereof except by due process of law as
guaranteed by section 4(a) of the Constitution;
b. The right not to be deprived of such procedural provisions
as
are necessary for the purpose of giving effect and
protection
of these rights and freedoms as guaranteed under section
5(2)(h) of the Constitution;
iii. A declaration that by reason of the defendant, its servants
and/or
agents acts and omissions as set out in the accompanying
affidavit
of the claimant and who being a registered Asylum Seeker
with
the United Nations High Commissioner for Refugees in
Trinidad
and Tobago, the claimant has been denied of his right to
freedom
of movement as enshrined by section 4(g) of the
Constitution.
iv. A declaration that the actions of the defendants their
servants
and/or agents in arresting and detaining the claimant on or
about
January 17, 2018 and continuing to January 23, 2018 without
informing him of his right to legal representation and
advice
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contravened his fundamental rights to legal representation
and
advice embodied in section 5(2) (c) (ii) of the
Constitution.
v. A declaration that the detention of the claimant from January
17,
2018 and continuing to January 23, 2018 was in contravention
of
his right to liberty and the right not to be deprived thereof
except
by due process of law under the provisions of section 4 and 5
(2)
(h) of the Constitution.
vi. An order quashing the decision of the Chief Immigration
Officer to
initiate and prosecute the claimant by way of Special
Inquiry
under section 22 of the Immigration Act, Chap. 18:01.
vii. An order for monetary compensation in favour of the
claimant for
the contravention of his fundamental rights aforesaid.
5. The defendants contend that the seizure of the claimant’s
passport was
to complete their investigations and its continued detention is
to avoid
the claimant from escaping the consequences of the laws of
Trinidad
and Tobago (“the jurisdiction”).
6. The defendants also argue that the claimant has failed to
seek
alternative remedies in private law as the instant proceedings
are
primarily focused on the seizure of the claimant’s passport and
as such,
is an abuse of process.
ISSUES FOR DETERMINATION
7. The issues for determination are as follows:
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i. Whether the failure of the claimant to seek alternative
remedies
in private law amounts to an abuse of the court’s process.
ii. If not, whether the detention and arrest of the claimant
was
constitutionally unlawful, and an abuse of power.
iii. Whether the claimant’s passport was seized and detained
without
due process of law under section 4(a) of the Constitution.
iv. Whether there were breaches of the claimant’s
constitutional
rights enshrined under section, 4 (g) of the Constitution.
v. Whether there was a breach of section 5(2)(h) of the
Constitution
and the effect thereof on the order for the Special Inquiry.
THE EVIDENCE
The case for the claimant
Affidavit of Austine Ugonna Okeke filed March, 18, 2018
8. While in the jurisdiction, he met and married Susan Oliver on
October
22, 2014 at the office of Pundit Karran Nanco. However, the
claimant
indicated that during the marriage, he was subjected to physical
and
verbal abuse by his wife and despite counselling from his local
church,
the marriage broke down. The claimant filed a petition for
divorce,
which is currently pending before the Family Court.
9. On January 17, 2018 the claimant was arrested by police
officers at his
home at Dow Village, Southern Main Road California and on
the
following day, he was handed over to the Immigration Detention
Centre,
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San Fernando and his Nigerian passport was seized. According to
the
claimant, he was informed by Immigration officials at the time
that the
passport was seized for the purpose of investigation but he was
not told
of the nature of the investigation.
10. According to the claimant, two Immigration Officers, one of
African and
one of East Indian descent, interviewed him and he informed them
that
he wanted to speak with an Attorney. However, the officers
verbally
insulted him and told him that illegal immigrants do not have
rights.
Thereafter, the claimant was placed in a filthy, overcrowded
cell with
other detainees, after which he was subsequently moved to the
San
Fernando Police Station.
11. The claimant was detained by the first defendant until
January 23, 2018.
His release bond was paid by one Pastor David Ali and he was
placed on
an Order of Supervision until the hearing of a Special
Inquiry.
12. The claimant deposed a historical narrative regarding the
inhumane
treatment, persecution and hardships he experienced in Nigeria
because
he is a Christian. He is fearful for his life and was certain
that his return
to Nigeria will result in his death.
13. He applied to the United Nations High Commission for
Refugees
(“UNHCR”) to be registered as an Asylum seeker. On September
25,
2018, he was issued a UNHCR card and his status was changed to
an
asylum seeker. The UNHCR card expired on September 25, 2019
however as at the date of writing the court is unaware as to
whether his
application has been determined.
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14. On January 11, 2019, the claimant’s Attorney wrote a letter
to the first
defendant seeking disclosure of all documents relating to the
Special
Inquiry. His Attorney also wrote a second letter on January 25,
2019
seeking the reasons for the seizure of the claimant’s passport,
pursuant
to section 16 of the Judicial Review Act, Chap. 7:08.1
15. On January 28, 2019, the claimant’s Attorney wrote the first
defendant
requesting that the claimant’s passport be returned to him for
the
purpose of renewal. According to the claimant, the renewal
process
required that he first travel to Jamaica and then re-enter the
jurisdiction
to continue his UNHCR application and as well as attend his
divorce
proceedings.
16. The defendant responded by letter on February 5, 2019
stating it was
the policy of the first defendant to retain the claimant’s
passport in
order to determine his legal status.
17. That Special Inquiry has been suspended pending the outcome
of the
claimant’s asylum application to the UNHCR.
The case for the defence
Affidavit of Hemwatee Samaroo filed April 30, 2018
1 Section 16 of the Judicial Review Act provides, “16. (1) Where
a person is adversely affected by a decision to which this Act
applies, he may request from the decision-maker a statement of the
reasons for the decision”.
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18. Samaroo has been an Immigration Officer for approximately
eleven
years. At that material time she was an Immigration Officer II
attached
to the Enforcement Unit in South Trinidad.
19. On January 18, 2020, Samaroo was given a directive, along
with other
Immigration Officers, to visit the Couva Police Station. Upon
arrival, they
seized the claimant’s passport and took the claimant into their
custody.
The police officers also informed the Immigration Officers that
they
were on patrol in the Couva area and detained the claimant. No
charges
were laid against the claimant.
20. At the Enforcement Unit, a passenger report was generated
which
verified the claimant’s arrival date and the length of time he
was
permitted to remain in the jurisdiction, the purpose of entry
being
vacation. His entry certificate set out clearly that he was not
permitted
to work during that time.
21. Samaroo interviewed the claimant. The claimant indicated
that he was
married to a Trinidad national by the name of Susan Oliver but
could not
produce a marriage certificate and was unable to give the wife’s
contact
information or other basic information.
22. According to Samaroo, the claimant admitted that he
overstayed his
time in the jurisdiction and did not attempt to regularize his
status. He
also informed her that he was employed as a security officer and
earned
$180.00 per day, but provided no documents to confirm same.
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23. The claimant then signed the information sheet and a Notice
of Reasons
for Arrest and Detention was served on him.2 Samaroo informed
the
claimant of the reasons for his arrest and detention and
explained same
pursuant to section 9(4) (f) and 9(4) (k) of the Immigration
Act, Chap.
18:01 (“The Act”).
24. Samaroo deposed that she instructed her colleague to retain
the
claimant’s passport for investigative purposes and the retention
sheet
was given to the claimant.
25. As a result of the claimant’s breach, the claimant was
further detained
pending a Special Inquiry. According to Samaroo, the records
show the
claimant was detained at the Marabella Police Station and a
security
deposit was paid on his behalf on January 22, 2018 whereupon he
was
released and placed on an Order of Supervision.3
26. The Order of Supervision dated February 27, 2018 mandated
that the
claimant return to the Enforcement Unit on March 27, 2018 with
his
wife and a copy of his marriage certificate. The claimant
returned on
March 16, 2018, and provided his marriage certificate.
27. The claimant was placed on subsequent Orders of Supervision
pending
the Special Inquiry. The dates of the claimant’s Orders of
Supervision
2 See the exhibit “H.S.2” namely the information sheet dated
18.01.2018 setting out the claimant’s name, date of birth, age,
address, marital status, name of employer (Propound Protection) and
his earnings.
3 The Order of Supervision, pending the Special Inquiry sets out
the following terms; that he produce himself for deportation, is
not to travel outside of Trinidad and Tobago in excess of 48 hours
without notifying the CIO, is to inform the CIO of change of
address or employment within 48 hours.
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were; January 23, 2018, February 27, 2018, March 27, 2018
and
November 13, 2018.
28. The immigration records show that on October 12, 2018, the
CIO
declared that the claimant overstayed his permitted entry into
the
jurisdiction and thus ceased to be a permitted entrant with
effect from
October 10, 2014 for the purpose of section 9(4) the Act.
29. Samaroo was informed by one Immigration Officer, Patricia
Knights, that
the claimant was served with an Order to Show Cause and a Notice
of
Hearing in Deportation Proceedings and had to appear before a
Special
Inquiry on January 17, 2019.
30. In response to the claimant’s affidavit, Samaroo deposed
that she was
the only Immigration Officer that interviewed the claimant. At
no point
in time during the interview, did the claimant request to speak
with an
Attorney.
31. The conditions of the holding cells of the Enforcement Unit
were also
denied. In response, Samaroo deposed that the cells are cleaned
daily.
32. She also explained that the Enforcement Unit is not equipped
to hold
detainees overnight, but as the Immigration Detention Centre
(“IDC”)
was crowded, the claimant was taken to the Marabella Police
Station.
33. As far as Samaroo knew, the first defendant was never made
aware that
the claimant sought asylum status until his Attorney wrote
the
defendant on January 25, 2019. This was new information to
Samaroo,
who deposed that the claimant visited the Enforcement Unit
from
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January 23, 2018 to January 17, 2019. After November 2018, she
was no
longer in possession of the claimant’s immigration file.
Affidavit of Mr. Gewan Harricoo April 30, 2018
34. Harricoo has been an Immigration Officer for the past twenty
years. At
the material time, he was an Immigration Officer IV and
therefore has
custody and access to all the records of the claimant. He has
perused the
claimant’s file and found the information therein to be true and
correct.
35. Some of his evidence was the same as Samaroo’s and so that
evidence
need not be repeated.
36. He deposed that the policy of the defendant is to retain the
original
passport of any illegal resident, as the case of this the
claimant, in order
for the defendant to conduct an investigation to determine
the
claimant’s immigration status. The status of the claimant is
determined
by the Minister of National Security and/or the CIO.
37. Harricoo explained that the investigation entailed:
i. A passenger report that detailed the lawful dates and flights
of
entry in and out of the jurisdiction and his entry certificate.
As
such, the passport would be examined to compare the
information on the passenger report.
ii. An interview conducted by an Immigration Officer II, taking
basic
information on the detainee and verifying that the
information
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given corresponds with the information on the bio-page of
the
passport. If the information does not correspond a detailed
search
is done on the defendant’s BMS database.
iii. The stamp on the passport is also checked to determine
its
authenticity and whether there is an extension of stay on
the
detainee’s entry certificate. If the information does not
correspond with the passenger report, a further investigation
is
done by the document examination lab, which can take weeks
or
sometimes months to complete.
iv. On completion of the interview, the Immigration Officer II
would
determine if the detainee has breached any immigration laws
and
if he has, he would be arrested and detained and served with
a
Notice of Reason for same.
38. Within the immigration process, there is a chain of command
by which
the original passport is eventually passed from junior
Immigration
Officer to the Immigration Officer IV, the latter being Harricoo
in this
case.
39. Thereafter, Harricoo would instruct the Immigration Officer
II to prepare
a report to determine the status of the immigrant, as well as
whether a
Special Inquiry hearing should be held. This report is then
submitted to
the Chief Immigration Officer to make a decision. Throughout the
entire
process, the original passport is required to verify the
findings of the
junior Immigration Officer.
40. The Chief Immigration Officer ordered a Special Inquiry be
held to
determine whether the claimant should be deported or whether
he
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would voluntarily leave the jurisdiction. Notwithstanding that
the
defendant completed its investigation, the claimant’s passport
was
retained to prevent him from unlawfully leaving the jurisdiction
and
being issued a new entry certificate if he were to return.
Further, it
would prevent him from escaping the laws of Trinidad and
Tobago.
41. On January 8, 2019 an Order to Show Cause and a Notice of
Hearing in
Deportation Proceedings were served on the claimant who was
carded
to appear before a Special Inquiry on January 17, 2019.
Following a
written request for disclosure from the claimant, the defendant
made
disclosure on January 17, 2019. As such, the hearing was
rescheduled to
February 5, 2019 and the claimant was placed on a further Order
of
Supervision.
42. Harricoo was aware of the claimant’s pre-action protocol
letter to have
his passport returned to him. He deposed that the defendant
could have
provided certified copies of the pages in the claimant’s
passport and
also, there was the alternative option to renew his passport
rather than
travel to Jamaica. The renewal process could be done through
the
Nigerian Embassy in Trinidad who would forward the information
to
Jamaica.
43. However, since the claimant applied for asylum status, that
option was
not available to him as he is precluded from contacting his
home
country. The claimant would have to await the decision of the
UNHCR to
be resettled. Further, the Special Inquiry cannot be conducted,
without
the pending of the UNHCR.
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The response of the claimant
Affidavit in response of to the affidavit of Samaroo
44. Prior to his interview with Samaroo, a male Immigration
Officer who was
present at the time made him sign a blank document. This
evidence was
not evidence given in reply to matters raised by the defence and
ought
to have been provided by the claimant in his principal
affidavit. The
evidence is therefore struck out and no weight is attached to
it.
45. In that regard most of the matters set out in the affidavit
in response of
the claimant is a repetition of matters set out in the principal
affidavits
and to that extent those statements are also struck out.
46. He denied that he told Samaroo that he was employed as a
security
officer.
47. In response to the first defendant’s reason for the seizure
of his
passport, the claimant deposed that no information was disclosed
to his
Attorney on the status of the investigation after such a lengthy
period of
retention.
48. He explained that he did not inform the defendant of his
UNHCR
application because he was fearful the defendant would seize
his
UNHCR card.
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Affidavit in response of to the affidavit of Harricoo
49. The claimant clarified that he was not asking to return to
his home
country to renew his passport. Further, his passport, which is
not the
property of Trinidad and Tobago, is his only form of photo
identification.
A photocopy of his document would not assist him in
conducting
financial transactions. Similarly the other matters dealt with
in the
affidavit were a repeat of the matters set out in the principal
affidavit
and are therefore weightless.
FIRST ISSUE
Whether the failure of the claimant to seek alternative remedies
in private law
amounts to an abuse of the court’s process
50. The defendants submitted that the claimant is not entitled
to a
declaration and/or damages for any alleged violation of his
constitutional rights as the claim is an abuse of the court’s
process. In so
submitting the defendant relied on the authority of O’Neil
Williams v
Attorney General & The Chief Immigration Officer
CV2019-03304.
There the claimant was a Jamaican national against whom a
deportation
order had been made in November 2017. He was also a detainee at
the
Immigration Detention Centre (IDC). He brought
constitutional
proceedings (after a series of previous proceedings) to
challenge the
deportation order on the basis that it breached his rights to
protection
of the law and freedom of movement. Along with dismissing
the
claimant’s request for an interim order, the court found that
the motion
was an abuse of process since he had approached the court on
three
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prior occasions prior for various reliefs but never challenged
the validity
of his deportation order.4
Law and Analysis
51. In Jaroo v Attorney General of Trinidad and Tobago [2001]
UKPC 5,
Lord Hope said at para. 29, “Nevertheless, it has been made
clear more
than once by their Lordships' Board that the right to apply to
the High
Court, which section 14 (1) of the Constitution provides should
be
exercised only in exceptional circumstances where there is a
parallel
remedy.”
52. In Siewchand Ramanoop v the Attorney General of Trinidad
and
Tobago [2005] UKPC 15 Lord Nicholls stated at para 25 and
26:
[25] “In other words, where there is a parallel remedy
constitutional
relief should not be sought unless the circumstances of
which
complaint is made include some feature which makes it
appropriate
to take that course. As a general rule there must be some
feature
which, at least arguably, indicates that the means of legal
redress
otherwise available would not be adequate. To seek
constitutional
relief in the absence of such a feature would be a misuse, or
abuse,
of the court's process. A typical, but by no means exclusive,
example
of a special feature would be a case where there has been an
arbitrary use of State power.
[26] That said, their lordships hasten to add that the need for
the
courts to be vigilant in preventing abuse of constitutional
4 See para 58 of the judgment.
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proceedings is not intended to deter citizens from seeking
constitutional redress where, acting in good faith, they believe
the
circumstances of their case contain a feature which renders
it
appropriate for them to seek such redress rather than rely
simply on
alternative remedies available to them. Frivolous, vexatious
or
contrived invocations of the facility of constitutional redress
are to
be repelled. But 'bona fide resort to rights under the
Constitution
ought not to be discouraged.”
53. This court finds that there were several alternative
remedies available to
the claimant in this case and that the claimant ought to have
had
recourse to those claims. Those included a claim for unlawful
arrest and
detention in private law and false imprisonment.
54. Further, on the evidence before this court there are factual
issues to be
decided surrounding the reason for detention, the power to
detain and
the conditions of the cells at the Marabella Police Station.
These are
matters that are hotly contested and are not appropriate for a
hearing
of a constitutional claim.
55. There is, in the court’s view, no feature that arguably
indicates that the
means of legal redress otherwise available would not be
adequate. The
resort to the invocation of Constitutional rights to ventilate
those claims
is a misuse of the court’s process.
56. However, in relation to the issue of the detention of the
passport, the
court accepts the submissions of the claimant that this issue
raised
definite issues of constitutional propriety for which there
appears to be
no adequate alternative remedy available to the claimant.
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57. The court would dismiss the other aspects of the claim on
the basis of
abuse of process but will treat with the constitutional claim in
so far as it
relates to the seizure and detention of the passport. This
encompasses
the breach of the right to enjoyment of property under section
4(a) of
the Constitution and breach of the right to freedom of movement
under
section 4(g). Further, the right not to be deprived of such
procedural
provisions as are necessary for the purpose of giving effect
and
protection of these rights and freedoms as guaranteed under
section
5(2)(h) shall also be treated with. Issue two above therefore
does not
arise.
THIRD ISSUE
Whether the claimant’s passport was seized and detained without
due process
of law, the section 4(a) right (property)
58. The claimant argues that the first defendant did not inform
him about
the process prior to impounding his passport under the
guiding
principles of natural justice and allow the claimant the
opportunity to
renew his passport.
59. In addition, he further contends that there was no
legitimate basis to
seize his passport. He relied on the authority of Justice
Kokaram, as he
then was, in CV2017-01513 Hafeez Mohammed Abdul Ghani
Rashid,
Inayat Fatima v The Chief Immigration Officer and the Minister
of
National Security.5 In this case it was held that there was
no
unequivocal statement from the immigration authorities as to
whether
5 See para. 73 of the judgment where the Honourable Judge quoted
the words of Blenman J in Clive Oliveira v The Attorney General,
The Chief Immigration Officer Claim No. ANUHCV2008-0449
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the claimants were to be subject to deportation proceedings,
thus, there
was no legitimate basis to hold or seize their passports.
60. The defendants however asserted there was a valid reason to
seize the
passport, that being their investigations. They also argued that
the
claimant had access to the judicial/court process. They relied
on the
authority of Daniel v Attorney General of Trinidad and Tobago -
(2016)
88 WIR 510 in which case their Lordships of the Court of
Appeal
dismissed the appellant’s appeal in which he challenged the
authorities’
delay in processing his appeal of sentence, but the Court of
Appeal
agreed with the trial judge that the appellant in fact at all
times had
access to the courts. He had successfully filed a habeas
corpus
application to secure his release and had obtained damages in
false
imprisonment. In fact, his further challenge on the same facts
by way of
motion was viewed as an abuse of process.
61. Section 4 (a) of the Constitution guarantees every
individual the
fundamental right to liberty and the right not to be deprived
thereof
except by due process of law.6 The section provides:
“4. It is hereby recognised and declared that in Trinidad and
Tobago
there have existed and shall continue to exist, without
discrimination
by reason of race, origin, colour, religion or sex, the
following
fundamental human rights and freedoms, namely-
6 See Lassalle v the Attorney General (1971) 18 WIR 379, Dilip
Kowlessar v The Attorney General H.C.A. No. S-350 of 1997, Mark
Jones v Noor Kenney Mohammed H.C.A No. 191 of 1998. Phillips JA in
Lassalle supra at 391 defined due process of law as “the antithesis
of arbitrary infringement of the individual's right to personal
liberty...”
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(a) the right of the individual to life, liberty, security of
the person
and enjoyment of property and the right not to be deprived
thereof except by due process of law.”
Findings
62. The right to the enjoyment of property is a fundamental
right, but not
an absolute one.
63. The evidence of the Immigration Officers is that the
investigative
process can be completed within some weeks or months, signaling
that
there was no guarantee and therefore an expectation of
timelines.
There is no requirement for the Immigration Officers to inform
the
detainee of the exact or approximate time frame of an
investigation as
much will depend on several matters including but not limited to
access
to information of the relevant authorities in a timely manner.
The failure
therefore to complete the process within a specific time frame
in this
case appears to have been justified on the evidence and so does
not
trample the right to property provisions of the
constitution.
64. Harricoo sets out the investigative process and deposes that
the original
passport is required at each stage. The court accepts this
evidence as
being grounded in reasonableness having regard to the facts
and
circumstances of the arrest and the answers provided by the
claimant at
the time of interview.
65. It means that at the time of arrest and interview in January
2018, the
claimant had not yet applied for asylum and so would have been
subject
to the usual process for investigation.
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66. The investigation appears however to have been determined
prior to
the claimant’s application for asylum in September 2018. The
result of
the investigation was that the claimant was found to be in
the
jurisdiction illegally and would be subject to either
deportation or
voluntary departure. For the purpose of making such a
determination a
Special Inquiry was to be held. He was not charged with a
criminal
offence for having stayed illegally.
67. Thereafter the claimant was placed on multiple Orders of
Supervision
and his passport was detained. In that regard, the court notes
that the
supervision orders impose a condition that the claimant is not
to travel
outside Trinidad and Tobago. The issue therefore is whether
that
continued detention of the passport infringed the claimant’s
right to the
enjoyment of property without due process.
68. In the court’s view it did not and could not up to that
point, as put quite
simply, the claimant had been found to have remained in the
country
illegally in that he ceased to be a permitted entrant. This is
the effect of
the order made on the 12th October 2018 by the CIO acting by way
of
powers delegated by the Minister of National Security. The order
was
made because of the breach of the claimant of sections 9(4)(f)
and
9(4)(k) of the Immigration Act Chap18:01.
69. Sections 9 (2) and 9 (3) read as follows;
(2) Subject to this Act, an immigration officer shall issue to a
person who
has been allowed to enter Trinidad and Tobago under subsection
(1)
[other than a person mentioned in paragraph (a) or (b) thereof],
a
certificate which shall be expressed to be in force for a
specified period
and subject to such terms and conditions as may be mentioned
therein.
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(3) Every person who has a certificate under subsection (2) to
enter
Trinidad and Tobago and who wishes to remain for a longer period
than
that previously granted or to have the conditions attaching to
his entry
varied, shall, notwithstanding that he is already in Trinidad
and Tobago,
submit to an examination under the limit the period of his stay,
vary the
conditions attaching to his entry, or otherwise deal with him as
if he were
a person seeking entry into Trinidad and Tobago for the first
time.
9(4) reads iner alia
(4) Where a permitted entrant is in the opinion of the Minister
a person
described in section 8(1)(k), (l), (m) or (n), or a person
who
f. was admitted or deemed to have been admitted to Trinidad
and
Tobago under subsection (1) and remains therein after the
expiration of the certificate issued to him under subsection
2…
k. has, since he came into Trinidad and Tobago broken any of
the
terms and conditions of the certificate issued to him under
subsection (2), the Minister may at any time declare that
such
person has ceased to be a permitted entrant and such person
shall
thereupon cease to be a permitted entrant.
70. Additionally, at the time of the making of the above order,
the CIO
would not have been aware of the application of the claimant to
be
admitted on the basis of asylum status and therefore would have
been
entitled to make the order consequent upon the determination of
the
investigation. However, it is to be noted that a deportation
order was
and has not yet been made against the claimant. That matter is
still an
outstanding one to be determined at the Special Inquiry which
has never
been held.
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71. However, the position changed substantively when the
defendant was
informed that the claimant had registered as an asylum seeker.
It
appears on the evidence that although the claimant had so
applied since
September 2018, he failed to disclose the fact of his
application to the
defendant until January 25, 2019, some four months thereafter.
Be that
as it may, the imposition of the registration as an asylum
seeker within
the ongoing process meant that there could be no deportation
order
made pending the determination of the asylum application
having
regard to established policy, obligations and practice of the
defendant.
72. It is for this reason no doubt that the claimant was
permitted release on
a supervision order as there is in law no power to detain the
claimant
except for the purpose of deportation. The law in this regard is
quite
clear.7
73. There being no lawful authority to continue to detain the
claimant for a
period that allows reasonably for his deportation where a
deportation
order is in fact made and no such deportation order having been
made
in this case, what then could be the lawful justification for
the continued
detention of the passport particularly where the Special Inquiry
has
been put on hold pending the outcome of the asylum
application.
74. The defence has argued that the supervision order contained
a clear
condition upon release of the claimant, namely, that the
claimant is not
to travel outside Trinidad and Tobago. This the defence says is
the basis
for the detention of the passport. However, one only has to
examine the
7 See the Privy Council decision of Tan Te Lam v Superintendent
of Tai A Chau Deportation Centre [1997] A.C. 97, p. 111 per Lord
Browne-Wilkinson and Troy Thomas v The Chief Immigration Officer,
CV2019-00888 per Justice Kokaram, (as he then was) at para. 4, 5,
26.
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full terms of clause 3 of the supervision order to observe that
the
argument is not a full one in light of the full conditions which
the
defence has failed to set out.
75. The supervision order restricts travel outside of Trinidad
and Tobago for
a period in excess of 48 hours without first having notified the
CIO of the
dates and places of such proposed travel. It does not impose a
condition
that the passport must be surrendered. This clause is of
fundamental
importance as when its natural and ordinary meaning is applied
it
becomes clear that the claimant is entitled to travel outside of
Trinidad
and Tobago for less than 48 hours without notifying the CIO but
if
however, he intends to do so for more than 48 hours then he
must
notify the CIO of the dates and places of such travel.
76. Whether this was the intention of the drafter of the
standard for
supervision order is unknown suffice it to say the natural and
ordinary
meaning of the words are pellucid. Neither is it a reasonable
argument
that the clause should be interpreted to mean that one could
only leave
and return within 48 hours and that if one is so doing for the
48 hour
period one must first notify the CIO of dates and place of such
travel.
Such an interpretation is an entirely strained one and leads to
an absurd
outcome.
77. In either case or in any event, the supervision order
demonstrates
clearly that travel outside of Trinidad and Tobago is not
prohibited and
the detention of the passport is not a condition of release on
the
supervision order.
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78. Therein lies the absence of due process in the detention of
the passport
of this claimant at this stage. Due process requires that
enacted laws do
not contain provisions that result in the unfair, arbitrary,
or
unreasonable treatment of an individual. The effect and actions
of the
detention of the passport in the circumstances has deprived
the
claimant of a due process that permits him the enjoyment of
property
namely the use of his passport in particular, possession of it
for the
purpose of renewal.
79. Due process also requires that the claimant be notified that
his passport
is being detained as a condition precedent to his release. In
the result
the court finds that the claimant has proven the claim in so far
as the
section 4(a) breach is concerned.
FOURTH ISSUE
Freedom of Movement, the section 4(g) right
80. In Ashton v Attorney General TT 2002 HC 120 the applicant
was
remanded into custody upon the conclusion of his preliminary
enquiry
which resulted in his incarceration for five weeks before his
bail was
posted. It was held that there was no breach of the section 4(g)
right as
the applicant was appropriately deprived of his liberty. At
para. 96,
Justice Myers stated:
“While the framers of the Constitution thought it appropriate
to
carve out a right to “freedom of movement” separate and
apart
from the right to liberty and the right not to be deprived
thereof
except by due process of law, I am hard pressed to see how, as
a
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matter of principle, where a person has been deprived of his
liberty,
that is has been sent to gaol, in a manner which does not
offend
section 4(a), that this could offend section 4(g). I accept that
there
may be cases where there might be a breach of the right to
freedom of movement, which did not necessarily involve a
deprivation of the right to liberty.”
81. The court accepts that the dicta set out above by Myers J
represents the
law as it stands and it agrees that there may of course be cases
where
the deprivation of the right to movement may be wholly exclusive
to the
deprivation of the right to the enjoyment of property but this
is not one
of those cases. It is in this sense that the court understands
the dicta of
Justice of Appeal Kangaloo in the case of Ferguson and
Galbaransingh v
the Attorney General of Trinidad and Tobago Civ. App 2010-185,
when
he at paragraph 59 stated the following:
“The right to freedom of movement set out in section 4(g) of
the
Constitution can be regarded as an essential component of
the
wider concept of liberty of man. To my mind it clearly includes
the
right to travel within, reside in and leave Trinidad and
Tobago.”
82. In Attorney-General v Hosein (1986) 42 WIR 328 the Court of
Appeal
affirmed the decision of the High Court that the respondent’s
rights
under sections 4 (a), (b) and (g) had been infringed by the
refusal of the
Immigration Officer to allow him to leave the jurisdiction
because he
was not a holder of a tax exit certificate. The Immigration
Officer did not
comply with the Exit Regulations. The objective of the Income
Tax (Exit
Clearance) Regulations was to prevent persons owing income tax
at the
time of their intended departure from departing Trinidad and
Tobago.
The Court of Appeal held that the Board of Inland Revenue and
the Chief
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Immigration Officer failed to read regulations 3 and 6 together
and
wrongfully and without due process, deprived the respondent of
his
right to freedom of movement.
83. In Bartik v Russia (App no 55565/00) [2006] ECHR 55565/00,
(not
binding on this court but reflective of the essence of the
right) the
European Court of Human Rights found a violation of Article 2
of
Protocol No. 4 on account of an unjustified restriction on the
applicants’
right to leave Russia. At para. 36, the Court stated:
“The right of freedom of movement as guaranteed by paras 1 and
2
of art 2 of Protocol No 4 is intended to secure to any person a
right
to liberty of movement within a territory and to leave that
territory,
which implies a right to leave for such country of the
person's
choice to which he may be admitted (see Napijalo v Croatia
[2003]
ECHR 66485/01 at para 68, 13 November 2003, with further
references). It follows that liberty of movement prohibits
any
measure liable to infringe that right or to restrict the
exercise
thereof which does not satisfy the requirement of a measure
which
can be considered as “necessary in a democratic society” in
the
pursuit of the legitimate aims referred to in the third
paragraph of
this article (ibid.). In particular, a measure by means of which
an
individual is denied the use of an identity document which, had
he
so wished, would have permitted him to leave the country,
amounts to an interference within the meaning of art 2 of
Protocol
No 4.”
84. The effect of the detention of the passport is that the
claimant could not
travel out of Trinidad, (which ironically is the objective of
deportation
proceedings) for the purpose of renewal. Indeed that is his
evidence.
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The evidence of the defence demonstrates however that there
were
other methods of renewal available or other documents which
could
have been issued to him for travel. The argument of the
defendant in
that regard is somewhat self defeating. It is at the least
axiomatic that
travel to Jamaica on a temporary document for the purpose of
the
renewal of a passport would more likely than not be an exercise
in
futility without possession of the passport that is the subject
of renewal.
85. Further, the court accepts that it would not be in keeping
with the
requirements of the application for asylum status for the
claimant to
have contacted the embassy of the very country which he seeks to
avoid
to ask that his nationality document be renewed when in fact he
has
given reasons for his departure therefrom which on the face of
it
justifies his application, namely the imminent threat to his
life. It is to be
noted that this evidence is uncontradicted and perhaps quite
reasonably
so as the CIO may not have access and would not reasonably
be
expected to have access to such information coming out of
Nigeria, but
be that as it may, such a move may likely result in an
unintended
consequence of his application for asylum.
86. It is worth repeating that the supervision order restricts
travel outside of
Trinidad and Tobago for a period in excess of 48 hours without
first
having notified the CIO of the dates and places of such proposed
travel.
It is not the case that the supervision order restricts travel
out of the
country absolutely nor is it the case that a condition of the
order is the
surrender of the passport. Clause 3 of the order is of
fundamental
importance as when given its natural and ordinary meaning, it is
clear
that the claimant is entitled to travel outside of Trinidad and
Tobago for
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less than 48 hours and if however, he intends to do so for more
than 48
hours then he must notify the CIO of the dates and places of
such travel.
87. The defence placed heavy reliance on the dicta of the
Honourable
Justice Dean Armorer in the case of Beverly Burrowes & Ors.
v The
Attorney General & Chief Immigration Officer8.
88. Further, the defence submitted that the CIO does in fact
have the power
to detain the passport pursuant to section 17 of the Act which
provides:
“(1) Subject to any order or direction to the contrary by
the
Minister, a person taken into custody or detained may be
granted
conditional release or an order of supervision in the
prescribed
form under such conditions, respecting the time and place at
which he will report for examination, inquiry, deportation
or
rejection on payment of a security deposit or other conditions,
as
may be satisfactory, to the Chief Immigration Officer.”
89. In that regard it must be noted firstly that the court
accepts that such a
power is granted by section 17 supra. However, no such condition
was
imposed by virtue of the order of supervision. It is a clear
requirement of
the section that same should be included as a condition of
release on
the prescribed form should that be the case.
90. Secondly, in Burrowes supra the Learned Judge also accepted
that the
seizure of a passport is one of the conditions for release
contemplated
at section 17 of the Act and went further to say;
“61. I agreed with learned Counsel for the Defendant that
the
seizure of the passport fell within the conditions contemplated
at
8 CV2016-01749
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section 17(1) of the Act. The conditions are imposed under
the
authority of the CIO, and are protected by the ouster
provision,
unless there is an allegation of bias, procedural unfairness or
a
lack of jurisdiction. None of those grounds had been advanced
in
relation to the passport.”
91. This court finds itself in full agreement with the dicta set
out above at
paragraph 61 of Burrowes. This however does not assist the
defence in
this case as the fulfillment of the requirements of the Act
dictates that
not only should the power be exercised but it must be exercised
in the
prescribed manner so as to be clothed with the protection
afforded to
the CIO when using the power, and to be fair to the detainee.
Put
another way, the exercise of the power must be specifically set
out in
the order of supervision as a condition of release or else it
simply is not a
condition. This is the protection afforded by the law. Were it
otherwise,
it would mean that the CIO could impose almost any restriction
without
setting same out on the order of supervision as a condition of
release on
the assumption that that restriction is a corollary to a
restriction set out
on the order of supervision when in fact it is not.
92. So to do would be to exercise the power in an arbitrary and
unfair
manner. This is the crux of the right to protection of the law
and it is
what has occurred here in that there is no condition imposed on
the
order of supervision for the detention of the passport as a
requirement
for release, but the CIO now says through Harricoo that the
passport
was detained for the purpose of restricting travel outside of
Trinidad.
Not only is the imposition of this unstated condition unfair in
the
context of it being an after the fact purported exercise of the
power, but
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it is also unfair in the context of the non absolute restriction
against
travel set out in the order of supervision.
93. It is therefore clear that in the circumstances faced by the
claimant, the
effect of the detention of the passport is that of deprivation
of the
claimant’s right to freedom of movement in that he has been
deprived
of the right to travel for the purpose of renewal of the
passport by the
detention of his passport in circumstances where he is
specifically
permitted to travel in keeping with the terms of the order of
supervision
so long as the CIO is notified.
94. That being said, it is not lost on the court that the
section 4(g) right is
similarly not an absolute one. The right to freedom of movement
can of
course be curtailed in suitable circumstances in keeping with
the
provisions set out in the law, specifically the Immigration Act.
The court
therefore finds that the claimant’s fundamental right to freedom
of
movement under section 4(g) was also breached.
95. Further, and for future guidance it is advisable that the
CIO makes it
clear on the order of supervision that it is a condition of
release that the
passport is to be surrendered and detained by the Immigration
Division.
FIFTH ISSUE
Section 5(2)(h) of the Constitution and the effect on the order
for the Special
Inquiry
96. Section 5 of the Constitution reads as follows:
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“5. (1) Except as is otherwise expressly provided in this
Chapter and in
section 54, no law may abrogate, abridge or infringe or
authorise the
abrogation, abridgment or infringement of any of the rights
and
freedoms hereinbefore recognised and declared.
(2) Without prejudice to subsection (1), but subject to this
Chapter and to
section 54, Parliament may not—
h) deprive a person of the right to such procedural provisions
as
are necessary for the purpose of giving effect and protection
to
the aforesaid rights and freedoms.”
97. In The Attorney General of Trinidad and Tobago v Oswald
Alleyne and
ors C.A.CIV.52/2003 Bereaux JA, in delivering the judgment of
the
Board, explained that the right encapsulated in section 5(2)(h)
was an
expansion of the rights set out in section 4 of the
Constitution. His
Lordship stated at paragraph 50:
“[50] Section 5(2)(h) does not stand on its own as an
individual
fundamental right, it is directed at Parliament, which it
prohibits
from depriving a person of such procedural provisions as
necessary
to give effect and protection to their rights and freedoms
under
section 4 of the Constitution. But it is also a further and
better
particularization of the rights set out in section 4; in this
case, the
due process provisions of section 4(a) and the right to the
protection of the law in section 4(b).”
And at paragraph 51 and 52:
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“[51] A failure by the Executive to provide procedural
provisions will
thus amount to a breach of the due process provision and the
right
to protection of the law. Attorney General of Trinidad and
Tobago v
Whiteman [1991] 2 WLR 1200 at 1204 provides helpful guidance
on
the interpretation of the provisions of section 5(2)(h). That
was a
case in which the respondent, having been arrested, was not
informed of his right to communicate with a lawyer and the
question which arose was whether, in order to make that
right
effective, there shall be provision for a procedure whereby he
was
informed of his right to counsel. It was held that while
section
5(2)(c)(ii) conferred on the person arrested the right to
communicate with a legal advisor, that right would be
ineffective in
certain circumstances unless there was provision for a procedure
by
which he was informed of it and section 5(2)(h) gave him the
right
to a procedural provision such as that provided by paragraph
8(b) of
the Appendix B to the Judges Rules 1964 and the right to have
that
procedure followed.
[52] The judgment of the Board was given by Lord Keith of
Kinkel. At
page 1204 he said: “The language of a Constitution falls to
be
construed, not in a narrow and legalistic way, but broadly
and
purposively, so as to give effect to its spirit, and this is
particularly
true of those provisions which are concerned with the protection
of
human rights. In this case, the right conferred by section
5(2)(c)(ii)
upon a person who has been arrested and detained, namely the
right to communicate with a legal adviser, is capable in
some
situations of being of little value if the person is not
informed of the
right. Many persons might be quite ignorant that they had
this
constitutional right or, if they did know, might in the
circumstances
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of their arrest be too confused to bring it to mind. Section
5(2)(h) is
properly to be regarded as intended to deal with that kind
of
situation as well as other kinds of situation where some
different
constitutional rights might otherwise be at risk of not being
given
effect and protection. There are no grounds for giving a
restricted
meaning to the words “procedural provisions.” A procedure is a
way
of going about things, and a provision is something which lays
down
what that way is to be. Given that there are some situations
where
the right to communicate with a legal adviser will not be
effective if
no provision exists for some procedure to be followed with a
view
to dealing with these situations, there is a clear necessity
that such
provision should be made. So section 5(2)(h) gives a right to
such
provision. Their Lordships further consider that, by
necessary
implication, there is a right to have the procedure followed
through.
A procedure which exists only on paper, and is not put into
practice,
does not give practical protection.”
“Procedural provisions” therefore is to be construed broadly
and
purposively so as to give effect to the spirit and intention of
the
Constitution. Section 5(2)(h) gives a right to a procedure by
which
effect is given to the individual’s rights and freedoms. The
rights
and freedoms set out in sections 4 and 5 are also manifested
in
statutes as rights and entitlements, as in this case.”
98. Special inquiries are governed by Sections 21-27 of the
Act.
99. Section 22(1) provides;
22. (1) Where he has knowledge thereof, any public officer shall
send a
written report …………to the Chief Immigration Officer in respect
of
paragraphs d to i with full particulars concerning;
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f. any person who, being a permitted entrant, has been
declared
by the Minister to have ceased to be such a permitted
entrant
under section 9(4)(supra)
(2) Every person who is found upon an inquiry duly held by a
Special Inquiry Officer to be a person described in subsection
(1) is
subject to deportation.
100. The defendant submitted essentially that the claimant was
not required
to attend the Special Inquiry unless there was a report done
and
submitted to the CIO and a section 9 (4) declaration was
made.
Therefore he argues that there was no basis to hold a Special
Inquiry and
a declaration should be made setting it aside. In passing the
court must
comment that attendance at the Special Inquiry is different from
the
issue of lawfulness so that the court understands the argument
of the
claimant to be in relation to the latter and not the former.
101. The evidence of the defendant and a careful reading of the
relevant
sections of the Act however put an end to this issue. As stated
before,
the declaration made by the CIO on the 12th October 2018 is made
by
virtue of the powers delegated to the CIO by the Minister.
Further the
evidence of Harricoo is that after investigations, the
Immigration Officer
IV directs the Immigration Officer II to prepare a report
pursuant to
section 22(1) of the Act for submission to the CIO to make a
determination as to the status of the immigrant and whether a
Special
Inquiry should be held.
102. In the present case, the declaration by the CIO was made
under
delegated powers as if the Minister would have made it himself.
This by
inference would have been after the report was submitted
although a
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report is not attached to the evidence. In making the
declaration the CIO
considered the report that was sent to her and a decision was
made
whether to hold a Special Inquiry.
103. This process employed is not in the court’s view a
derogation from the
provisions of section 22 of the Act as when considering whether
to hold
a Special Inquiry the CIO is considering the report of the
junior officer
and the declaration made by the Minister albeit signed by the
CIO under
the delegated powers. The decision that is being made at that
stage
under section 22 is simply whether having regard to the
information
before the CIO, a Special Inquiry should be held to determine
whether
the migrant should be deported. The precursor to that decision
is to
decide the status of the migrant but this is only a delegated
duty under
the Act.
104. That being said, there is no gainsaying that the use of the
delegated
power may result in public misunderstanding of the roles and
functions
of the Minister and the CIO in such circumstances as the CIO is
required
to wear two hats when treating with the same detainee. But
the
gravamen of the issue is whether the procedure contravenes
section
5(2)(h) of the Constitution.
105. In the court’s view the provisions of section 22 do not
contravene
section 5(2)(h) in that it does not abrogate, abridge or
infringe any of the
enshrined rights set out at section 4 as the Act makes it clear
that the
decision as to the status of the migrant is that of the Minister
which is
certified by the declaration. This is a wholly separate function
from that
of the CIO whose duty it is to consider the report and make
an
altogether different determination than that of the Minister,
namely to
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determine whether a Special Inquiry should be held to
determine
whether the migrant should be deported. The two functions
remain
separate and apart. In so doing the CIO is acting specifically
under
section 23 of the Act which reads as follows;
(2) Subject to any Order or direction by the Minister, the
Chief
Immigration Officer shall, upon receiving a written report
under
section 22 and where he considers that an inquiry is
warranted,
cause an inquiry to be held.
106. So that the provisions of the Act as it stands, in
particular section 22 is
not a law that deprives an individual of the right to such
procedural
provisions as are necessary for the purpose of giving effect
and
protection to the rights and freedoms set out at section 4 of
the
Constitution and the court so finds. It is therefore unnecessary
for the
court to proceed any further in this regard.
DISPOSITION
107. The court makes the following order;
a. It is declared that the seizure and detention by the
defendants their
servants and/or agents, of Federal Republic of Nigeria passport
No.
A05611036, issued to the claimant, from January 25, 2019
contravened the rights of the claimant guaranteed by section
4(a) of
the Constitution namely the right of the individual to the
enjoyment
of property and the right not to be deprived thereof except by
due
process of law.
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b. It is declared that the seizure and detention by the
defendants their
servants and/or agents, of Federal Republic of Nigeria passport
No.
A05611036, issued to the claimant, from January 25, 2019
contravened the rights of the claimant guaranteed by section
4(g) of
the Constitution namely the right of the individual to freedom
of
movement and the right not to be deprived thereof except by
due
process of law.
c. Federal Republic of Nigeria passport No. A05611036, issued to
the
claimant, shall be returned to the claimant who shall have same
or a
renewed passport available for presentation to and inspection by
the
first defendant, her servants and/or agents when called upon
by
them so to do and shall surrender same to the first defendant,
her
servants and/or agents in the event that an Order of Deportation
is
made against the claimant upon conclusion of a Special
Inquiry.
d. In all other respects the claim is dismissed.
e. Damages payable to the claimant for the breaches are to be
assessed
by a Master on a date to be fixed by the Court Office.
f. The defendants shall pay to the claimant sixty per cent (60%)
of the
costs of the claim to be assessed by a Registrar in default
of
agreement on a date to be fixed by the Court Office.
Ricky Rahim
Judge