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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE, A.N UBAKA

 

DATED 23rd MARCH, 2026 SUIT NO: NICN/LA/314/2021

 

DR BONIFACE O. IGBENEGHU                                         CLAIMANT

 

 

AND

 

  1. THE UNIVERSITY OF LAGOS
  2. THE SENATE, UNIVERSITY OF LAGOS            DEFENDANTS
  3. THE GOVERNING COUNCIL, 

UNIVERSITY OF LAGOS

                                                                                    

REPRESENTATION       

Tolulope Taiwo for the claimant

Adetola Ogunlewe with Emmanuel Oyewale for the Defendants.

 RULING

By a general form of complaint filed by the claimant on the 26th August, 2021 against the Defendants seeking the following reliefs:

 

  1. A declaration that the dismissal of the claimant by the defendants is unconstitutional, null and void and of no effect.

 

  1. A declaration that the defendants acted in bad faith when they dismissed the claimant on the allegation of misconduct without giving the claimant the requisite fair hearing as enshrined in the 1999 Constitution  of the Federal Republic of Nigeria (as amended), the claimant’s memorandum of appointment as Associate Professor, the University of Lagos Act, the University of Lagos Regulations Governing the conditions of service of Senior Staff, the Public Service Rules of the Federal Republic of Nigeria and the University of Lagos Policy on Sexual Harassment, Sexual and Romantic Relationships.

 

  1. A declaration that the claimant’s contract being a contract coated with statutory flavor is protected by the Statutes/Laws/Rules (the University of Lagos Act, the University of Lagos Regulations Governing the conditions of service of Senior Staff, the Public Service Rules of the Federal Republic of Nigeria and the University of Lagos Policy on Sexual Harassment, Sexual and Romantic Relationships) and the Defendants did not adhere to the provisions of the Statutes/Laws/Rules before dismissing the claimant.

 

  1. An order setting aside and nullifying the claimant’s dismissal from the University of Lagos as contained in the defendants’ letter dated 31st May, 2021.

 

  1. An order of this honourable court directing the defendants to reinstate the claimant to the same position he would have been if he had not earlier been dismissed from the University of Lagos.

 

  1. An order of this Honourable court directing the defendants to restore the claimant’s official Residence.

 

  1. An order compelling the defendants to pay the claimant all the arrears of his salaries and emoluments to wit:

 

  1. Salaries from June 2021 up until the claimant is reinstated 
  2. Leave allowance up until the claimant is reinstated
  3. Arrears of Minimum wage increase 
  4. Arrears of earned academic allowance N2, 000, 000.

 

  1. Special Damages in the sum of N20, 000, 000 (Twenty Million Naira) for the disgrace and anguish suffered by the claimant due to the publication, the suspension and the subsequent dismissal of the claimant by the defendants.

 

  1. General Damages in the sum of N5, 000, 000 (Five Million Naira) jointly and severally against the defendant.

 

  1. Cost of the action assessed at N5, 000, 000 (Five Million Naira).

 

On the 30th April, 2025 when the matter was called out for continuation of trial, the claimant’s counsel informed the honourable court that it only just got to her notice that Prof. Taiwo Osipitan SAN, the counsel to the 1st-3rd defendants is the Chairman, University of Lagos Advisory Council, a Lecturer and Staff of the 1st defendant and that with the facts of the instant case and the Rules of Professional Conduct for Legal Practitioners, Professor Taiwo Osipitan SAN, and other counsel in Bayo Osipitan & Co cannot continue to represent the defendants in this matter.

 

Upon the contention of the claimant’s counsel on the above issue raised, the honourable court directed the parties to address it on the competence or otherwise of the legal representation of the 1st -3rd defendants by Professor Taiwo Osipitan SAN.

 

On 10th June, 2025, the claimant’s counsel filed a written address in compliance with the honourable court’s directive wherein he submitted that by Order 8 Rules (1) & (2) of the Rules of Professional Conduct for Legal Practitioners, it is clearly stated that a lawyer in a salaries employment shall not appear as an advocate in a court or tribunal, neither can the lawyer prepare, sign nor frank pleadings, applications, instruments agreements, contracts, deeds, letters, memorandum, reports, legal opinions or similar instrument or processes or file any of such document for his employer. That in the instance case, Professor Taiwo Osipitan SAN, of Bayo Osipitan & Co cannot prepare, sign or frank pleadings, applications, instruments, agreements etc. for his employer, the 1st defendant and that all the processes filed in the instant case by the learned silk cannot relied upon by the honourable court as it robs the honourable court of its Jurisdiction. He cited the unreported case of Akazor Gladys & Ors v Council of Legal Education (NICN/ABJ/346/2017) and urged the honourable court to so hold and also to strike out the entire court processes filed by the learned silk.

 

In response to the claimant’s counsel written address, the defendants’ counsel on 4th July, 2025 filed their written address in compliance with the directives of the honourable court wherein he formulated two issues for court determination:

 

  1. Whether the claimant’s address which is unsupported by a Motion on notice and supporting affidavit or Notice of Preliminary Objection is competently before the honourable court.

 

  1. Whether the claimant has discharged the burden of proving that Professor Taiwo Osipitan SAN, and other counsel in Bayo Osipitan & Co are disqualified from appearing as counsel to all the defendants herein.

 

On issue one (1); the defendants’ counsel submitted that by Order 17 Rule 1, Rule 4(b) and Rule 9 of the Rules of the honourable court, an application should be by way of a Motion on Notice supported by an affidavit and also a written address but the claimant merely filed a Written address in support of his request for disqualification of Professor Taiwo Osipitan SAN, and other counsel in Bayo Osipitan & Co from appearing in the instant suit as counsel to the defendants without filing a Motion on Notice or Preliminary Objection nor filed any affidavit through which necessary facts and exhibits will be brought to the attention of the honourable court; that the approach adopted by the claimant run contrary to the above mentioned rules of the honourable court and same is manifestly incompetent. He cited the case of Hassan & Anor v INEC & Ors (2023) LPELR-61545 (CA) and urged the honourable court to so hold.  

 

On issue two (2); counsel submitted that the burden of proving facts which disqualify a legal practitioner from court appearance is therefore on the party challenging the right of such legal practitioner to appear in court; that the claimant has failed to exhibit the employment contract between Professor Taiwo Osipitan SAN and the 1st defendant as to show the terms and conditions of the employment which invariably means the objection is dead on arrival. He cited the case of Nwavu v Okoye (2008) 18 NWLR (Pt. 1118) 29.

 

On the jurisdiction of the honourable court as to the court processes; counsel submitted that it is common ground that processes were filed and served as counsel to the defendants as far back as year 2022 wherein the claimant also joined issues with the defendants by filing a Reply to the defendants’ Statement of defence; that the claimant having taking steps presumably waived issues of defects (if any) in the processes (assuming they were improperly signed/franked by counsel in the firm of Bayo Osipitan & Co). That it is trite law that issues on representation of parties, do not affect competence or substantive jurisdiction of the court. He cited the case of Akalonu v Omokaro (2003) 8 NWLR (Pt 821) 190.

 

On the right to represent 2nd and 3rd defendants unaffected; counsel submitted that the claimant has evidently not alleged employer/employee relationship between the 2nd and 3rd defendants and Professor Taiwo Osipitan, the admission is binding on the claimant and Professor Taiwo Osipitan can therefore consequently appear as counsel to the 2nd and 3rd defendants and that Rule 8 (1) so heavily relied upon by the claimant does not preclude him from appearing for third parties who by the claimant’s address shows no employment relationship with Pro. Taiwo Osipitan.

 

On right to represent the 1st defendant; counsel submitted that the prohibition against non-appearance of employees on behalf of their employers is inapplicable to persons who function as legal officers is Government establishments; that it is common ground that University of Lagos is a Federal Government University having been established by University of Lagos Act and based on the claimant’s admission on the existence of legal department/legal Advisory Services Board under the chairmanship of Pro. Taiwo Osipitan, who performs the function of a legal officer in a government legal department is therefore exempted from the general provision of Rule 8 (1) of Rules of professional conduct.

 

That all other counsel in the law firm of Bayo Osipitan & Co) can competently appear for any/all the defendants as the clear and unambiguous provisions of Rule 8 of the RPC only impose personal restriction on the individual counsel who is in salaried employment of his employer and not on other partners or associates in a law firm with which the salaried practitioner is affiliated. He cited the unreported case of Mr. Wilson Udo Essien v Unitech Drilling Company Ltd (NICN/PHC/120/2021).

 

Continuing, counsel urged the honourable court to take judicial notice of the fact that the defendants’ processes were signed by Adetola Ogunlewe Esq who is not alleged to be an employee of any of the parties. He cited the case of Okafor v Nweke (2007) LPELR-2412 (SC) and urged the honourable court to dismiss the objections of the claimant on the above stated legal arguments.

 

I have heard the submission and authorities cited by counsel to the parties. The issue for determination is whether a lawyer on a salaried employment can appear for his employer as an advocate in court.  In Mrs. Mercy Sabina Forson v Calabar Municipal Government & Anor (2003) LPELR-7273 (CA) on the appearance of lawyer on a salaried employment held thus 

 

                        In general, a member of the bar whilst a servant or in a salaried employment of any kind should not appear as an advocate or in any High court, but the following shall not be deemed to constitute a member or a servant in a salaried employment (employment as a legal officer in any government department. When learned counsel for the appellant referred to Rules 30 and 31 (a) of the Rules of Professional Ethics for legal practitioners, he did not even for a moment refer to the exceptions listed under Rule 31 (a), which is very surprising. With due respect the submission is not only empty and untenable, but a deliberate distortion of a clear and ambiguous provisions of the law. it is an attempt to erase the exceptions in Rule 31(a) (i) (ii) (iii) and (iv). There is no doubt that if the above submission is accepted, then the Hon Attorney General at the Federal to the state level, down to pupil state counsel who are all servants of the state and are salaries, will be barred from appearing in courts. The framers of the Rules of Professional conduct for legal practitioners never intended such a weird proposition.

 

Now to the competence or otherwise of the legal representation of the 1st -3rd defendants by Professor Taiwo Osipitan SAN, in this case being a lecturer in the 1st defendant’s university and in a salaried employment, litigant is free to engage a counsel of his choice at any time and may equally terminate such engagement at any time. See Igwe (Engr) Michael Chukwukadibia v Ichie Michel. U. Eze & Ors (2015) (LPELR -25748 (CA) on the right of a party to engage a counsel of his choice the court held thus 

 

From the entire submissions of counsel and all the counsel to all the parties in this appeal, they agree that a party is entitled to a counsel of his choice.  one important fact which is germane to the consideration of the contentions in respect of the representation by counsel is that till this moment, the 10th – 15th respondents have not challenged the authority of Professor Okafor SAN to represent them. when a counsel files a process in court or announces his appearance for a party, it is not within the power of the court to challenge his authority to so appear or to disallow his appearance for reason of procedural irregularity if any.  The court has no power to decline permission or prevent a counsel from appearing for a party who has exercise his constitutional right of choice of counsel.

 

The person to decide who represents him as the counsel is the party involved. The issue of representation is to be decided by the party. it is not right to involve the court in the matter of counsel. For the claimant to raise the issue of representation with the court giving a backing to such is not justified. This is because the onus is on the 1-3rd defendants to intimate the court as to who their counsel is. it is not for the claimant to complain. 

Accordingly, I hold that Prof Taiwo Osipitan SAN is competent to represent the 1st – 3rd defendants in this case and in this honourable court. 

 

Ruling is entered accordingly.

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE