Introduction

A Claimant in every Fundamental Human Rights Enforcement proceeding ordinarily should sue a respondent who can answer all the questions that cannot be effectually and completely answered unless he is a party and a respondent who must be bound by the result of the suit. The practice currently in our courts where some Claimants sue respondents who know little or nothing about the subject matter and the cause of action in human rights enforcement proceedings apparently makes such cases difficult. This is worse when all the respondents listed in the suit fall outside the acclaimed categories of parties namely: proper party, desirable party and necessary party [Green V. Green (1987) 3NWLR].

Status of a Synergized Security Outfit

A Synergized Security outfit is an outfit formed by pulling resources from diverse Law enforcement agencies together to form an outfit that can deal squarely with the overwhelming security challenges in the Country. The truth is that each of the synergized security outfits like Operation Hadi Kai, Operation Safe Haven, Operation Delta Safe, etc., whose personnel do allegedly cause the injury being sued against is autonomous and independent of the services that seconded personnel to her. The outfit is answerable to the President through the Chief of Defence Staff. Each is composed of military and para–military personnel drawn from the other services to create a composite outfit radically different from the contributing services in all material respects. And each of the synergized outfits is commanded by a senior officer of Brigadier General’s rank and above with sub–commanders in charge of Administration, Operations, finance, legal and other departments. It equally has the attributes of legal personality such as power to acquire rights, duties and enter into some legal relationships. For purposes of command and control over the seconded personnel of these synergized security outfits, their Commanding Officers in the outfits automatically assume command over the personnel in accordance with section 291(1) of the AFA [The Armed Forces Act CAP A20].

Mission of Synergized Security Outfits

The upsurge of divers security challenges all over the country including, terrorism, banditry, kidnapping and economic sabotage has caused the President, as the Commander in Chief of the Armed Forces and the Chief Security Officer of Nigeria to invoke his powers under section 217 (2)(c) of the CFRN[ The Constitution of the Federal Republic of Nigeria, 1999 (as amended)] 1999 (as amended) and section 8(1)(a) of AFA[ Armed Forces Act, CAP A20, LFN,2004] to establish different synergized security outfits to deal with our overwhelming security challenges. 

The power vested on the President by the Constitution and the Armed Forces Act to deal with Security issues in the country impliedly empowers him to create such bodies in order to duly carry out his constitutional duty. He is only limited by the law forbidding him from giving any order that is illegal or inconsistent with the Constitution.

Parties to a Suit

The three types of parties and the difference between them were properly spelt out in the case of Green V. Green (supra). Delivering the leading judgment, Oputa JSC (of the blessed memory) mentioned the three parties as follows: 

“proper parties, desirable parties and necessary parties. Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be, fairly dealt with. In other words the question to be settled in an action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”

Determinant in Joinder of Parties

The determinant in considering who should be joined as a necessary party in a case as stated in the Supreme court case of Ibegwura Ordu Azubuike VS Peoples Democratic Party & Ors[ LER[2014] SC. 476/2012] is whether a person is likely to be affected by a decision reached in a matter before the court. Other factors are: 

a. Is the cause or matter liable to be defeated by non–joinder?

b. Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant? 

c. Is the 3rd party a person who should have been joined in the first instance? 

d. Is the 3rd party a person whose presence before the court as a defendant will be necessary in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the cause or matter? PER AFOLABI FABIYI, JSC 

All the posers above are answered in favour of the point that the contributing organizations ought not to be joined as parties in such cases.

Relating the Law to Suits against Synergized Security Outfits in Nigeria

Relating the above Legal position to the current situation where Contributing Services and Organizations are joined as parties against personnel of various Synergized Security Outfits in Nigeria must take note of the structural status of the said Synergized Security Outfits. The relevant questions at this juncture therefore are: 

a. Whether the contributing organization is a necessary party to a suit alleging breach of right against the personnel of a synergized security outfit? 

b. Whether the Synergized Security outfit is suable?

Let me at this juncture, address these posers seriatim.

• Whether the Contributing Organization is a Necessary Party to a Suit alleging breach of right against the Personnel of a Synergized Security Outfit?

The answer to this poser is found in the ruling of the Supreme Court of Nigeria in the case of Green V. Green (supra) and that of Ibegwura Ordu Azubuike VS Peoples Democratic Party & ORS (supra) where the court held as follows: 

“The well settled position of the law for making a person, either natural or legal, to be a party to an action is that he should be bound by the result of the action. The questions to be settled in the action must be questions which cannot be effectually and completely settled unless he is a party. The court is expected in the interest of justice to join as plaintiff or defendant anyone who may have a stake in the subject matter of the suit or may be affected by the decision.” PER RHODES–VIVOUR

Going by the above ruling, a party to be sued as a necessary party in a suit must be the person who is responsible for the act complained against and a person who is in a position to answer the questions that must be answered for the matter to be effectually and completely settled. The law provides that all the personnel attached to a formation like the Synergized Security Outfit such as Operation Safe Haven, are under their respective Commanding Officers in all material respects. The Outfit can deploy any of them on any duty and instantly punish them when necessary without recourse to the contributing organization[ See Sections 115(1), 116(1) and 291(1) of AFA].

In view of the above, it is this synergized security outfit that can answer questions that can effectually and completely settle an action as prescribed in the Supreme Court ruling above. It is the Commander of the synergized security outfit who details the troops on specific operations that knows the subject matter of the case resulting from such operations he authorized. The Commander–in–chief will not deny the result of the operation he commanded while the task force Commander in the field, and not any Commander of the contributing organization, remains in a position to answer all the questions which cannot be effectually and completely settled unless he is a party.

Note that by the organizational structure and modus operandi of the synergized security outfits, neither the contributing organization nor its commander can contribute anything to the success of a case against personnel of synergized security outfits since nobody can give what he does not have (nemo judex in causa sua). In a decided case where a claimant enlisted the Nigerian Army as the 1st Respondent in a suit claiming damages against personnel of Operation Safe Haven but failed to include the special task force itself as a party, the action was trivialized as it became nearly impossible to get answers to questions that could effectually and completely settle the matter. Same principle should apply to similar outfits like Operation Thunder, set up sometime by the Akwa Ibom State Governor as the Chief Security Officer of the state.

In view of the above, it is opined that a contributing organization should not be joined in suits against personnel of synergized security outfits. This is because they do not qualify in fact as proper party, desirable party or necessary party as defined in Green V. Green (supra).

• Whether the Synergized Security outfit is suable?

The Synergized Security outfits were created based on the Operational and Administrative directives of the President. These directives from the Commander–in–Chief, transmitted in form of standing order under section 57 of the Armed Forces Act, as affirmed in the case of Brig. Gen Anyankpele (rtd) V. The Nigerian Army [See (2000) 13 NWLR Pg212], has the force of law in the eyes of military law jurisprudence and it qualifies under operational exigencies to create the synergized security outfits to aid the civil authority in combating overwhelming security challenges ravaging our Country. The court appeared to have given judicial imprimatur on similar issues in different cases. For instance, in the case of Onamusi Vs Ibrahim[ (1971) AIINLR 361], the court held that the abandoned Property Committee, though not incorporated can be sued.

See also the case of Kpebimoh Vs The Board of Governor Western Ijaw Teachers Training College[ (1968) NMLR], where it was held that the Board can be sued because of the statutory function that it was performing. Moreover, Section 217 (2)(c) of the CFRN 1999 (as amended) which empowers the President to call upon the members of the Armed Forces to suppress insurrection and act in the aid of civil authorities impliedly empowers him to set up the synergized security outfits. And if the legislature has thus created a thing which can own property, own servants who can inflict injury, it must be taken to have impliedly given the power to make it suable in a court of law for injuries purposely done by its authorities and procurement.

In view of the above, it is submitted that a Synergized Security Outfit being a task force created pursuant to the President’s statutory powers is suable.

The Way Forward

It is therefore advised that for the court to make effective judgement on Fundamental Human Rights Enforcement suits against Synergized Security Outfits, the President, the outfits and its commanders be sued directly. A leaf should be borrowed from the judgement in the recent case of Mazi Nnamdi Kanu Vs Federal Republic of Nigeria and 7 Ors, where the High court of Umuahia levied the Federal Government of Nigeria who the court believed created the Operation Python Dance through which the injury complained against was perpetrated to pay Mazi Nnamdi Kanu the some of One Billion Naira rather than pursuing the organizations that contributed personnel to form the Operation Python Dance.

Conclusion

It is hoped that this observation would be heeded so that only necessary parties are sued in Fundamental Rights Enforcement matters against synergized security agencies. Otherwise, we keep blaming organizations who know little or nothing about such cases and the judgment thereon and so can not respond positively thereto.