THE PRACTICE OF SUING CONTRIBUTING ORGANIZATIONS RATHER THAN THE ERRING ORGANIZATION

1. When a lawsuit is instituted in a case wherein an Applicant sues Defendants who have no clue to the subject matter of the suit and may not be able to pay the damages claimed, the suit thereby becomes incompetent as the judgement of the court is thereby rendered ineffective.  Civil suit after all, is a process for recovery of an individual right or redress of an individual wrong. The essential requirements of this suit includes the subject matter in dispute, the cause of action and the relief claimed by the Plaintiff. The practice in our courts where the subject matter, the cause of action and perhaps the ability to pay the claim are clearly outside the knowledge and competence of the defendants clearly makes such cases incompetent, especially when such parties are the only Respondents listed in the suit.

2. This is exactly the case with the current practice in our courts where many Human Right Enforcement suits are filed against the various arms of the Nigerian Armed Forces particularly, the Nigerian Army on issues they know little or nothing about. The truth is that each of the synergized security outfits whose personnel allegedly caused the injury being sued against 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 and independent of same. Each of the outfits is  commanded by a senior officer of Brigadier General’s rank and above with sub-commanders in charge of Operations, finance, legal and other departments. And it has the attributes of legal personality such as power to acquire rights, duties and enter into some legal relationships. The synergized security outfits include, Operation Hadi Kai, Operation Safe Haven, Operation Delta Safe, etc.

3. 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 1999 (as amended) and section 8(1)(a) of the Armed Forces Act CAP A20, Laws of the Federation of Nigeria 2004 (AFA) 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. Besides, the task-force are created to carry out statutory mandates as held in the case of Onamusi V. Ibrahim Lawal (1971) AIINLR 361.

4. The determinant in considering who should be joined as a necessary part 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.  

5. The court appeared to have given judicial imprimatur on similar issues in different cases. For instance, in the above mentioned case of Onamusi Vs Ibrahim (supra), 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.
6.  It is therefore advised that for the court to make effective judgement on suits before it, 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 is the capable principal to pay Mazi Nnamdi Kanu the some of One Billion Naira rather than pursuing the organs that contributed personnel to form the Operation Python Dance, not even mentioned in the suit.  

7. It is hoped that this observation would  be heeded so that only necessary parties are sued for the court’s judgment to be effective.  Or can organizations be rightly blamed for not responding positively to judgments on cases they know little or nothing about? A situation where Applicants hardly enforce their judgments due to misjoinder of parties is an ill wind that blows no one any good in the judicial process.