PROFESSIONAL ETHICS, INSTITUTIONAL AUTHORITY, LEGAL JUSTICE, AND THE ECNBA 2026 QUESTION

In defence of Chief Okutepa, SAN’s right to accept a brief to defend the NBA’s constitution.

I have read, first, the write-up of Chief Okutepa, SAN on his alleged unwarranted and unjust vilification for representing Claimants who are challenging the validity and constitutionality of the appointment and composition of the ECNBA 2026 in court, and the response of the President, Afam Mazi Osigwe, SAN, to the said write-up.

The summary of Chief Okutepa, SAN’s allegations against the President is that the President, using the instrumentality of his office, blocked his reappointment as a member of the Body of Benchers for daring to accept a brief to lead the team of lawyers engaged by some Claimants to challenge the fundamental irregularity in the appointment of members of the ECNBA for the 2026 NBA General Election. Additionally, the President was accused of dragging Chief Okutepa to the LPDC for the same reason he blocked his reappointment as a member of the Body of Benchers.

The President substantially admitted the allegations and sought to rationalise and justify the acts complained of. In deflecting from the core issues, the President contended that his petition against the reappointment of Chief Okutepa, SAN to the Body of Benchers, as well as the petition to the LPDC, was based on alleged infractions of ethical standards and the Rules of Professional Conduct, and not merely because he is representing the Claimants in a case challenging the President’s procedure in the appointment of members of the ECNBA.

In further defence of his actions, which Chief Okutepa, SAN described as infamous, the President contended that Chief Okutepa, SAN, having been present at the NEC meeting where the ECNBA was constituted, and having witnessed the proceedings leading to its constitution—including the moving and seconding of the motion for the “approval/ratification” of the appointment of members of the ECNBA—ought to have disclosed these material facts to the court in the Claimants’ affidavit in support of the motion ex parte and other processes filed in the suit. According to the President, the failure to disclose these facts amounted to concealment of material facts and a breach of ethical obligations, for which reliance was placed on Rule 24(1) of the Rules of Professional Conduct.

The ethical question that arises from the President’s allegation against Chief Okutepa, SAN is rooted in the role of counsel as an officer of the court and a minister in the temple of justice. This code, as stated by Lord Denning M.R. in Rondel v Worsley (1967) 3 All ER 993, is not merely a code of law, but a code of honour. His Lordship succinctly summarised the duties of counsel thus:

“He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud without evidence to support it. He must produce all relevant authorities, even those against him. He must ensure that his client discloses, if ordered, all relevant documents, even those fatal to his case. He must disregard the most specific instructions of his client if they conflict with his duty to the court.”

To accuse Chief Okutepa, SAN of a breach of these duties without credible evidence, as the President has done, is itself a breach of the corresponding duty not to unjustly accuse another without basis and in the final analysis, self-serving. This is more so because the allegation of knowingly concealing material facts borders on a serious professional and quasi-criminal imputation, which cannot be established by mere assertion that counsel witnessed events without more.

As one conversant with the facts, I am aware that several persons, including NEC members, expressed interest in being joined as Plaintiffs. The eventual choice of Plaintiffs was not limited to NEC membership alone, but to those who personally witnessed the events at the NEC meeting in question, and this fact was duly disclosed in the processes filed before the court. A counsel intent on concealing material facts would hardly proceed in such an open and transparent manner.

It appears that the President may not have fully appreciated the gravamen of the Plaintiffs’ case in the matter referred. The Plaintiffs, including their counsel, Chief Okutepa, SAN, do not dispute the factual narrative presented by the President. Indeed, I can confirm that the President’s account is substantially correct, as I also witnessed the proceedings. The President called for a motion for the approval/ratification of individuals he had earlier constituted as members of the ECNBA, and the motion was seconded. These facts form the very foundation of the Plaintiffs’ case. There is therefore no basis for alleging concealment. These are admitted facts which require no further proof. That remains the settled position of the law. Can strict adherence to this principle amount to misconduct? With respect, the answer must be in the negative.

By inviting the NEC to approve or ratify the appointment of members of the ECNBA already constituted by him, the President effectively reduced the NEC to a rubber stamp body. This is in clear contrast to the provisions of the NBA Constitution, which vest such decision-making powers directly in the NEC. There is a clear legal distinction between a body taking a decision and merely ratifying a decision already taken by another. In P.I. & P.D. CO. LTD V EBHOLA (2001) 4 NWLR (PT 704) 495, “approval” was defined as an act of confirming, ratifying, sanctioning, or consenting to an act done by another.

It is therefore evident that the Plaintiffs’ case is not only justiciable but also novel, and capable of enriching our jurisprudence while strengthening internal democracy within the NBA. This is particularly significant given the emerging trend among some NBA branches, where general meetings are increasingly reduced to rubber stamps for decisions already taken by the Chairmen, contrary to the spirit of the NBA Constitution. In this regard, Chief Okutepa, SAN may well be remembered as leading a principled effort to restore participatory governance within the Association.

Finally, the President alluded to the fact that Chief Okutepa, SAN participated in the NEC proceedings without objection. However, participation in a proceeding does not validate it where the irregularity is fundamental or constitutional in nature. Nor does it preclude a participant, in his professional capacity as counsel, from subsequently accepting a brief to challenge such proceedings. See GOVERNOR OF EKITI STATE V FAKIYESI (2010) ALL FWLR (PT 501) 828.

Conclusion

At its core, this controversy should transcend personalities, and personal interests, and invites a deeper reflection on the very foundations of the legal profession and institutional governance within the NBA. The right of a legal practitioner, particularly a Senior Advocate of Nigeria, to accept a brief without fear of institutional reprisal is not a privilege; it is a cornerstone of the independence of the Bar. Therefore, any act or omission that gives the impression or is implied to penalise counsel for representing a cause, especially one that seeks to interrogate constitutional compliance, is to imperil the very essence of justice and the rule of law.

If the Bar cannot tolerate dissent expressed through lawful advocacy, then it risks becoming an echo chamber rather than a bastion of justice. The courts exist precisely to resolve such disputes, and counsel must remain free to approach the courts without intimidation, sanction, or subtle coercion. In defending Chief Okutepa, SAN’s right to accept this brief, one is, in truth, defending the sanctity of the legal profession, the supremacy of the Constitution, and the enduring principle that justice must not only be done but must be seen to be done—without fear or favour.

Adetunji Oso,SAN