Federal High Court judge James Omotosho on Wednesday invited seven legal experts to offer opinions regarding the suit filed by the State Security Service (SSS) against the move to constitute a “shadow cabinet” in the country by Pat Utomi, a political economy professor and former presidential candidate.
The list of legal experts, invited by the judge as amici curiae (friends of the court), consists of law professors and Senior Advocates of Nigeria (SANs).
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The SSS sued Mr Utomi at the Abuja Division of the Federal High Court last month, praying that Mr Utomi’s plan to establish what he and his allies described as a shadow cabinet or a shadow government be declared as an attack on the Nigerian constitution.
The Nigerian secret police organisation also asked the court to bar the proponents of the arrangement from going ahead with it.
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Mr Utomi, who has denied any wrongdoing with his call, filed a preliminary objection, urging the court to dismiss the suit for lack of jurisdiction.
At Wednesday’s hearing, the judge, Mr Omotosho, said he had reviewed the filings by both parties and taken note of their respective submissions and positions on the issues.
He noted that due to the unique constitutional nature of the suit, he had invited professors of law and senior lawyers to as amici curiae from Nigeria’s six geopolitical zones.
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The invited legal experts include Ademola Popoola, a professor of international law and jurisprudence at the Obafemi Awolowo University (OAU), Ile-Ife, Osun State, and Uchefula Ugonna Chukwumaeze, a professor and SAN, who is the Vice Chancellor of Imo State University.
The list also includes two former presidents of the Nigerian Bar Association (NBA) who are both SANs – Joseph Daudu and Yakubu Maikyau.
The rest are Joe-Kyari Gadzama, a SAN who hails from Borno State, North-east Nigeria, but practises in Abuja; Dakas C. J. Dakas, a SAN and law professor at the University of Jos, and Miannaya Aja Essien, also a SAN who is based in Port Harcourt, Rivers State.
According to the judge, the experts with experience in academia and legal practice are expected to observe the proceedings and independently provide their positions on the case, which he described as a matter of national interest.
The judge then scheduled the hearing of the suit and Mr Utomi’s objection to it for 10 July.
Before the adjournment, the lawyer to the SSS, lawyer, Akinlolu Kehinde, a SAN, asked the judge for guidance on the procedure for the hearing.
He noted that based on established procedure, once a party files an action, the court is expected to first deal with the interlocutory application before moving on to the substantive issues.
However, the lawyer for the defendant, Mike Ozekhome, also SAN, insisted that the court ought to first determine his preliminary objection.
Responding, Mr Omotosho took the middle ground.
“I will not take the interlocutory injunction. I will first look at the preliminary objection and then the originating suit. I will take them jointly because of want of time,” the judge declared.
The judge further warned that any party attempting to take steps that could undermine the case would have their actions nullified by the court.
Mr Ozekhome made to raise arguments based on constitutional rights, contending that even the military had not curtailed such freedoms in the past. But the judge asked him to pause, saying the court would address those concerns at the appropriate time.
Suit
The SSS sued Mr Utomi on 13 May, following his call for the constitution of a shadow cabinet.
The agency, Nigeria’s top intelligence organisation, asked the court to declare the move to constitute a shadow government an attack on the Nigerian constitution and a threat to the current democratically elected government.
It further argued that the planned “shadow cabinet” is an aberration.
The secret police organisation expressed concern that such a structure, styled as a “shadow government,” if left unchecked, may incite political unrest, cause inter-group tensions, and embolden other unlawful actors or separatist entities to replicate similar parallel arrangements, all of which would pose a grave threat to national security.
The plaintiff, therefore, urged the court to declare the “shadow government” or “shadow cabinet” being planned by Mr Utomi and his associates as “unconstitutional and amounts to an attempt to create a parallel authority not recognised by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”
It is also sought a declaration that “under Sections 1(1), 1(2) and 14(2)(a) of the Constitution, the establishment or operation of any governmental authority or structure outside the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is unconstitutional, null, and void.”
The SSS asked the court to issue an order of perpetual injunction, restraining Mr Utomi, his agents and associates “from further taking any steps towards the establishment or operation of a “shadow government”, “shadow cabinet” or any similar entity not recognised by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”
Utomi defends proposal, seeks dismissal of suit
Mr Utomi has justified his call for a shadow government.
Speaking during the fourth edition of the Topaz lecture series titled: Shadow Government, A Distraction or Necessity, hosted by the Department of Mass Communication of the University of Lagos (UNILAG) Class of 1988 Alumni Association, last month, Mr Utomi said the arrangement is a critical instrument for democratic accountability, policy innovation, and the deepening of democratic values and reform.
“This is not an attempt to overthrow or undermine the government but to foster constructive criticism and accountability,” The Nation quoted him as saying. “Shadow cabinets are a recognised democratic practice around the world, and Nigeria must embrace institutions that encourage performance and transparency.”
On Tuesday (24 June), the political economist also filed a notice of preliminary objection in court against the suit.
In the filing submitted through his lawyer, Mr Ozekhome, Mr Utomi urged the court to dismiss the case for lack of jurisdiction.
He raised four grounds, arguing that the suit disclosed no reasonable cause of action within the meaning of the National Security Agencies Act.
He argued that the subject matter of the suit, comprised of civic political engagement, shadow cabinet formation, and public policy discourse, does not fall within the statutory functions of the State Security Service as provided under Section 2(3) of the National Security Agencies Act.
He further contended that prayers put forward in the suit only aimed to criminalise constitutionally protected rights to freedom of expression, association, and political participation, contrary to Sections 39 and 40 of the Nigerian constitution.
According to him, the suit amounted to an abuse of court process and was speculative, incompetent, inchoate, and lacking in legal foundation.
In his affidavit filed in support of the preliminary objection, Mr Utomi wrote that the suit was speculative, hypothetical, and premature, as it sought preemptive orders based on mere suspicion and without a factual basis.
He argued that the SSS lacked the requisite locus standi to institute the action and that the subject matter of the suit falls outside the constitutional and statutory powers of the claimant. He added that the matter does not invoke the civil jurisdiction of the court.
“That the suit amounts to an abuse of judicial process intended to muzzle the constitutionally guaranteed right to freedom of expression and political association,” he said.
“That the claimant has not disclosed in the originating summons any concrete act or omission on the part of the defendant amounting to a breach of any known law or posing any clear and present danger to national security.”
He also argued that the suit, as constituted, seeks to use civil proceedings to pursue objectives that ought to be handled under established statutory processes with defined legal thresholds and safeguards.
Mr Utomi, therefore, urged the court to strike out or dismiss the suit in its entirety for want of jurisdiction.
Under the shadow cabinet arrangement, Mr Utomi had reportedly proposed the Ombudsman and Good Governance portfolio to be manned by Dele Farotimi; the Policy Delivery Unit Team consisting of Oghene Momoh, Cheta Nwanze, Daniel Ikuonobe, Halima Ahmed, David Okonkwo and Obi Ajuga; and the council of economic advisers.
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