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24TH JUNE, 1966


3PLR/1966/39 (SC)
















  1. A. Odesanya, with him S. M. Olakunrin, – for the appellant
  2. A. O. Jinadu, Principal State Counsel, with him E. O. Idowu, State Counsel, – for the respondent




Appeal by plaintiff. Lagos High Court No. LD/595/1962.



ADEMOLA, C.J.N. (delivering the judgment of the Court}-

This is an appeal by the plaintiff from the judgment of Udo Udoma, J., dated the 10th December, 1962, dismissing the claim of the plaintiff, which was-

(1)     for a declaration that

(a)     the plaintiff is entitled under the Nigeria (Constitution) Order-in-Council to be defended in the Charge No. LA/68C/1962 in which he is the 27th accused person by Mr E. F. N. Gratiaen Q.C., or any other counsel of the plaintiffs choice whether British or indigenous.


(b)     the order of the defendants prohibiting the entry of the said Mr E. F. N. Gratiaen into Nigeria for the purpose of defending the plaintiff in the aforementioned Charge No. LA/68C/1962 is ultra vires the said Nigeria (Constitution) Order-in-Council and is therefore null and void.

(2)     An injunction restraining the defendants from preventing the said Mr E. F. N. Gratiaen Q.C., or any other British counsel who might be counsel of the plaintiffs choice from entering into Nigeria for the purpose of defending the plaintiff in the said Charge No. LA/68C/1962.” of persons accused of treasonable felony and some other offences in the said charge, that he engaged Mr Gratiaen to come out from England to defend him, that Mr Gratiaen arrived at Lagos by air on 8th November, 1962, for that purpose, and that the 1st defendant, at the time Federal Minister of Internal Affairs, refused to allow Mr Gratiaen to enter Nigeria. The plaintiff alleged that this refusal constituted a denial of his constitutional right and seriously handicapped and prejudiced him in his defence.


The constitutional right alluded to is in section 21 (5)(c) of the 1960 Constitution of the Federation; the provision is that


“(5)   Every person who is charged with a criminal offence shall be entitled-


(c)     to defend himself in person or by legal representatives of his own choice.”


The trial judge refers to section 13 of the Immigration Ordinance (cap. 84 in the 1958 Laws of the Federation of Nigeria and Lagos) which provides that-


“13.   Notwithstanding anything in this Ordinance contained, the Minister may, in his absolute discretion, prohibit the entry into Nigeria of any person, not being a native of Nigeria.”


The learned judge goes on to say that the Minister acted within his powers under that section 13 when he directed that Mr Gratiaen should not be allowed to enter Nigeria; and in regard to the above provision in the Constitution he gives it as his view that-


“The Constitution is a Nigerian Constitution, meant for Nigerians in Nigeria. It only runs in Nigeria. The natural consequence of this is that the legal representative contemplated in s. 21 (S)(c) ought to be someone in Nigeria, and not outside it.”


Later on the learned judge states as follows:-


“It is clear that any legal representative chosen must not be under a disability of any kind. He must be someone who, if outside of Nigeria, can enter the country as of right; and he must be someone enroled to practice in Nigeria.”


In his view the plaintiffs case means adding to the constitutional provision, after the word “choice,” the words “whether in Nigeria or elsewhere”-which are not there. The learned judge thinks that the aim of that provision is to confer a right on an accused person to have a legal representative of his own choice, and to protect him from having someone foisted on him by the prosecutor, Government, or another person.


Admittedly Mr Gratiaen is not a native of Nigeria or a citizen of Nigeria. He was enroled as a legal practitioner in Nigeria and had a travelling pass, but was refused entry by the Minister; and the question turns on whether section 13 of the Immigration Ordinance ought to be read down on the basis that the plaintiff is right in claiming that s.21(5)(c) of the Constitution of the Federation entitles him to bring into Nigeria for his defence a legal practitioner who was neither a native nor a citizen of Nigeria.


It seems clear to us that section 13 of the Immigration Ordinance (or Act) contains an exception in favour of “a native of Nigeria” and one has to look at section 26 of the 1960 Constitution which provides that-


“(1)   Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto.”


It is however unnecessary for us to decide here whether section 13 of the Immigration Ordinance should read “not being a citizen of Nigeria,” or read “not being a native of Nigeria or a citizen of Nigeria,” because Mr Gratiaen was neither. Mr Odesanya, who argued the plaintiffs appeal, made two submissions:-


(i)      that the court will normally construe a statute as merely conferring a permissive power, that is, a power subject to the Constitution, and


(ii)     that it is an implied condition of statutory powers that they must be exercised so as not to prevent rights granted by the Constitution from being enjoyed by the person entitled to enjoy them.


We have to say that we were not referred to any authority in support of these submissions. It may be that they are elementary and authority is hardly necessary; but in furtherance of his argument on these submissions counsel stated that the court should in effect read section 13 of the Immigration Act with an added exception of words like the following-


“and not being a legal representative of the choice of an accused person in a criminal case.”


The effect of the argument is that a person accused of an offence has the unique privilege of being able to compel the Government to admit into Nigeria a person who has not the right to enter the country by virtue of section 26 (1) of the Constitution as a citizen of Nigeria. In our view, section 26(1) necessarily implies that other persons may be refused entry or expelled in accordance with the legislation in force on the subject. This is borne out by the following provision in section 20(1) of the Constitution:-

“No person shall be deprived of his personal liberty save in the following cases and in accordance with a procedure permitted by law…. (f) for the purpose of preventing the unlawful entry of any person into Nigeria or for the purpose of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.” It appears clearly enough that this provision of the Constitution recognises the legality of the Immigration Act, and we cannot see anything unconstitutional in the provision of section 13 of the Act which confers power on the Minister to prohibit in his absolute discretion the entry into Nigeria of any person who is not a native of Nigeria, or who is not a citizen of Nigeria (according to section 26(1) of the Constitution).


As for the question raised by counsel for the plaintiff whether the action of the Minister in prohibiting the entry of Mr Gratiaen was reasonable, we are of the view that this Court is clearly not concerned with the reasonableness or unreasonableness of the act of the Minister, and the question does not arise seeing that the Minister had an absolute discretion to prohibit his entry.


We think it necessary to add that section 21(5)(c) of the Constitution cannot be read in isolation, and this apparently was what counsel for the plaintiff has done. The right granted by this section is qualified by various considerations which we need not go into here. Various reasons may curtail the choice of counsel, for example, the counsel of the accused’s choice may be under lawful detention or lawfully confined and the like.


We are in no doubt that the plaintiffs claims were misconceived, and they were rightly dismissed.


This appeal is dismissed with costs assessed at 35 guineas.


Appeal dismissed.



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