Can the Office of the National Security Adviser and the AG Be Held Liable For an Alleged Breach By an Unknown Agency/Security Operative without Joining Such Agency/Security Operatives

CASE TITLE:                         NATIONAL SECURITY ADVISER & ANOR v. TASSANG & ORS (2022) LPELR-57211(CA)

JUDGMENT DATE:           23RD MARCH, 2022

JUSTICES:                            HARUNA SIMON TSAMMANI, JCA

                                               HAMMA AKAWU BARKA, JCA

UGOCHUKWU ANTHONY OGAKWU, JCA

COURT DIVISION:            ABUJA

PRACTICE AREA:               ACTION

FACTS:

​The respondents by way of an originating motion on notice brought pursuant to Order 1 Rules 2, 3, 4 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and Sections 35, 36, 37, 40, 41 and 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999, as amended, sought for declaratory reliefs and injunction with regards to their fundamental rights.

The appellants filed a notice of preliminary objection pursuant to Order 29 of the Federal High Court Civil Procedure Rules 2009 and Section 46 of the Constitution of the Federal Republic of Nigeria 1999 as amended, praying for an order striking out or dismissing the applicant’s suit for being incompetent and for want of jurisdiction.

After hearing the parties, the trial Court dismissed the preliminary objection filed by the appellant, and thereby entered judgment for the respondents, further awarding damages in the sum of N200,000.00 in favour of each of the respondents.

Aggrieved by the trial Court’s decision, the appellants appealed to the Court of Appeal.

ISSUES:

The appeal was determined upon consideration of the issues thus:

1. Whether the learned trial Judge was right to have held that deciding the issue of non-disclosure of the cause of action was delving into the substantive matter at an interlocutory stage.
2. Whether the respondents’ suit discloses a cause of action against the appellants.
3. Whether the learned trial Judge was right to have held that the respondent’s action was properly constituted.
4. Whether the learned trial Judge was right to have held that the affidavit of the respondents in support of the application was competent.
5. Whether the learned trial Judge was right to have entered judgment in favour of the respondents, granted damages in their favour and restrained the appellants perpetually from further arresting, detaining and deporting the respondents,

COUNSEL SUBMISSIONS

It was the contention of learned counsel for the appellants that considering the statutory functions of the appellants, and the appellants not being in control of the alleged armed security men, there was no cause of action disclosed against them; and further that respondents’ failure to pinpoint the particular armed security agency that carried out the alleged act, makes it legally impossible to apportion blame to the appellants. Learned counsel submitted that from the totality of the evidence placed before the trial Court there is nothing on record to show that the appellants permitted or authorized the alleged arrest or detention of the respondents, hence, the appellants cannot be held responsible.

Learned Counsel emphasized the point that respondents have failed to identify the armed men or to establish a nexus between those faceless or unidentified armed security men, appellants cannot be vicariously held liable for the alleged unconstitutional acts. He further argued that there was no factual allegation of wrong done by the appellants.

In their response on the issue, the learned counsel for the respondents emphasized that where want of jurisdiction is in issue on account of the reasonable cause of action, it is the applicants’ originating process that holds sway as against the interpretation given to it by the appellants. Learned counsel submitted that the failings complained of vested the Respondents with a cause of action against the Chief Law Officer of the country.

DECISION/HELD

In conclusion, the appeal was allowed.

RATIO

1. ACTION – PARTY(IES) TO AN ACTION: Whether the office of the National Security Adviser and the Attorney general can be held liable for an alleged breach by an unknown agency/security operative without joining such agency/security operatives

“This issue raises the vexed question of whether a cause of action was disclosed against the appellants, entitling respondents to seek redress against them. The appellants had contended before the trial Court that considering the deposition in the respondents’ affidavit in support of the application, exhibit A attached and going by the statutory functions of the appellants, who are not in control of the alleged armed security men, there was no cause of action disclosed against them. It was also argued by the appellants that due to the failure of the respondents to pinpoint the particular armed security agency that carried out the alleged act, it cannot be legally possible to apportion blame to the appellants and thereby determine the action against them.

It was further contended that from the totality of the affidavit evidence and the exhibits attached, there was nothing to show that the appellants permitted and/or authorized the alleged arrest and detention of the respondents and/or directed any armed security agent or any person to arrest and detain the respondents. Appellants thus complained that they cannot be held liable for the unconstitutional acts of unknown or unidentified armed security operatives. I agree with the learned counsel in line with the decision of the Assistant Inspector General of Police vs. Ezeanya (2016) ALL FWLR (pt. 830) 1349 @ 1373; that any question bordering on the infringement of fundamental rights is largely a question of fact, and in that case, the facts disclosed in the affidavit filed in support of the alleged breach will be the determinant factor in discerning whether the fundamental rights of the individual(s) were breached in a manner contrary to the constitutional provisions.

It is true as contended, that neither of the two appellants was mentioned in the supporting affidavit, save where the deponent stated that the respondents’ armed agency was mentioned, nor was their involvement in the arrest and detention of the respondents made out, therefore legally impracticable to institute an action against a party without linking the said party to the action or inaction complained of. I think learned counsel is correct in that regard. It is the law, that a man intends the legal consequence of his acts, and if no act is directly linked to the person accused, he cannot be held liable.

This legal pre-position applies in respect of statutory bodies and agencies. It is therefore logical that where the respondents before this Court intends to sue the appellants as nominal parties, the actual security agencies that perpetrated the alleged action complained of ought to have been joined as a party, to enable the principle of vicarious liability to flow therefrom. For instance, if as Mr. Falana would want us to believe, respondents were detained in the underground cell of the Defence Intelligence Agency, nothing stops the said agency from being made a party. In the same vein, it is only where the complaint is against the Federal Government or a State, which qualifies the Federal Attorney-General is called upon to answer. The case of the AG Kano State vs. AG Federation (2007) 6NWLR (pt. 1029) 164 @ 192 is directly on the point. I have closely studied the affidavit evidence adduced by the respondents in support of the originating motion deposed to by one Paul Oshayi, at page 11 of the record, wherein it was stated that:

i. Apart from the 4th applicant who is a citizen of Cameroon and the United States of America who is on a visit to Nigeria the applicants are Cameroonian nationals who have been in Nigeria for years with valid permanent resident status or on political asylum.

ii. That on Saturday 7th January 2018, the applicants assembled for a meeting at Nera Hotel, Abuja. However, before the commencement of the meeting, a team of armed operatives from the office of the 1st respondent invaded the venue, arrested the appellants and took them away to an unknown destination.
iii. The applicants gathered at Nera Hotel Abuja on 7th January 2018 for a meeting to discuss the challenges being faced by several Cameroonians who have sought asylum in Nigeria.
iv. That before the commencement of the meeting, the armed agents of the respondents invaded the venue and arrested the applicants.

v. That no reason whatsoever has been given for the arrest and continuous detention of the applicants.
vi. That the respondents have failed to inform applicants’ relatives of the arrest and detention of the applicants.
vii. That the 1st respondent has refused the applicants access to their families, lawyers, and their medical doctors.

viii. That all requests made to the respondents to visit the applicants have been rejected.
ix. That the respondents have refused to inform the relatives of the appellants of their arrest and detention.
4. That the applicants have not committed any offence in Nigeria.

5. The applicants are usually attended to by their doctors on a regular basis but the respondents have refused to allow the applicant’s doctors to visit them.

6. The 12th defendant is pregnant but the defendants have refused to allow her doctor
to visit her.

7. that since the arrest of the applicants on 7th January 2018 they have been held incommunicado by the respondents.

8. The applicants are being detained in an underground cell at the Defence Intelligence Agency Headquarters, Abuja.

9. That when the 1st respondent refused to release the applicants; the law firm of Falana & Falana’s Chambers wrote a letter to the Inspector-General of Police to demand the release of the applicants but the letter was ignored. A copy of the letter is hereby attached and marked exhibit A.
10. That unless this Honourable Court intervenes by ordering the respondents to release the applicants forthwith and pay them compensation for their illegal detention, the applicants will continue to languish in the respondent’s custody without being charged to Court.

I have equally looked at the paragraphs of the applicants’ counter affidavit in opposition to the respondents’ notice of preliminary objection, most particularly paragraphs 5, 6 and 7 thereof, a calm review of the preceding paragraphs not only showed that the perpetrators of the alleged acts being complained of were described as the armed agents of the appellants, but that whereas one Mrs. Brigitte Mukang-Eno, The United Nations Commissioner for Refugees visited the respondents on the authorization of the 1st respondent, but denied the deponent a right to such visit, there was no further evidence indicating that it was the appellants and/or their agents that were involved in the unconstitutional acts being complained of.

Indeed, one is tempted to ask whether appellants were in possession of armed agents as part of their service, and/or whether any action or inaction perpetuated by unnamed armed agents or unidentified security agents creates a liability for the appellants. I am swayed by the argument that the affidavit evidence adduced failed to specify which of the Nigerian security agents, arrested the respondents, nor that the alleged agency that carried out the alleged acts against the respondents was actually identified, and that being so, how can the appellants be held liable for acts, alleged to have been committed by an armed group of people not so identified.

It is not uncommon, judging from the recent experience of so-called security men that had the guts to visit the house of a serving Supreme Court Justice with sinister motives, later found out to be fake agents. I am not unmindful of the contention made by the respondents to the effect that 1st appellant was mentioned as responsible for the arrest and detention of the respondents, and that by the intendment of Exhibit A, attached to the application, the allegations made against the appellants was thus corroborated. I do not accept that contention.

The stated Exhibit A happens to be a letter written to the Inspector General of Police, Police Headquarters, by the lead counsel to the respondents, titled: Request to investigate the abduction of Southern Cameroonian leaders at Abuja by the State Security Service.

If the learned senior counsel is indeed sure that respondents were abducted by the State Security Service, a service that is identifiable with a head of its own, it would then be illogical to assert that the perpetrators of the unconstitutional acts were unknown, described only as agents of the appellants, and whereas it can be said that exhibit A, is a letter of request to investigate, as against a report of the alleged acts, paragraph (iv) of the deposition which talks of armed agents of the appellants cannot be leveraged upon to tie in the respondents as the perpetrators of the alleged acts committed by unidentified persons, since the law does not admit of any unfounded presumptions.

The ratio in the case of the All Progressive Congress vs. Peoples Democratic Party (2015) 15 NWLR (pt. 1481) 1 @ 62, to the effect that: “In paragraphs 6 and 7, the status of the 4th and 5th Respondents was stated. In paragraphs, 68 to 101, the only reference to the 4th and 5th Respondents was in the phrase “officers and men of the 4th and 5th Respondents”. The said officers and men were alleged to have committed a series of acts which are criminal in nature. The soldiers against whom the allegation of crime was made were unknown and could not, therefore, be said to be servants of the 4th and 5th Respondents in order to invoke the fiction that the master had impliedly commanded his servant to do what he did.

The Appellant did not show the basis of holding the 4th and 5th Respondents vicariously liable for the criminal acts of the un-named soldiers. [Iko v. John Holt & Co. (1957) SCNLR 107]” seems apt.

With due respect to the learned counsel for the respondents, the cases of Ransome-Kuti & Ors vs. AG of the Federation (1985) 6SC 245 @ 276-277, and Mrs Olufunmilayo Kuti vs. AGF (1985) NWLR (pt. 6) 211, contrary to the contention made for the respondents, can be to have shed more light with regards to the question relating to the identity of the perpetrators of the act complained about, for, unlike the instant case, the perpetrators in the cases cited were well known and identified.

It flows therefore as indicated in the case of AG, Ogun, Bendel and Borno States vs. AGF & 2 Ors (1982) 102 SC 13 @ 86, cited by the learned counsel for the respondents that, whereas the Attorney-General of the Federation as the Chief Law Officer of the Federal Republic of Nigeria has an interest in the interpretation of the Constitution, and can be sued as a defendant in all civil matters in which a claim can be properly made against the Federal Government or any of its authorized agencies, it is a precondition that the acts committed must emanate from the Federal Government or any agency of the Federal Government for the AGF, to have any interest.

Put simply, and mildly, the acts being complained about having been stated as perpetuated by persons unknown, or as casually put armed agents of the respondents, appellants herein cannot be lawfully held liable for the acts of such unidentified agents, and I so hold. In answer to the question therefore whether the lower Court was right or wrong, having held that a cause of action accrued to the respondents and against the appellants, I firmly hold that no such link whatsoever had been established against the appellants with the perpetrators of the acts complained of, and the lower Court wrong to have so held, and consequently, whereas, it can be said that respondents action disclosed a cause of action, such cause of action was not disclosed against the appellants.”  – Per BARKA, J.C.A.