Litigation costs: SAN, human rights lawyers insist justice must not become preserve of the rich

One thing that has raised concerns about access to justice is the rising cost of litigation in Nigeria, coupled with prolonged court proceedings, bureaucratic bottlenecks, and difficulties in enforcing judgments.

This development has therefore prompted senior lawyers and rights activists to warn that poor and vulnerable citizens must not be priced out of the justice system.

Speaking with the Nigerian Tribune in separate exclusive interviews, a Senior Advocate of Nigeria (SAN), Dr Abiodun Layonu, who acknowledged that the cost of litigation has increased significantly alongside the general rise in the cost of living and doing business in the country, explained that the increasing cost of filing court processes, lawyers’ fees and other litigation-related expenses has made access to justice more difficult for financially disadvantaged Nigerians.

According to the SAN, “Like everything else in the world today and in Nigeria and with our economy, everything is expensive now. It has gone up relatively. And that includes litigation, costs of filing, lawyers’ fees, etc.

Dr Layonu, however, pointed out that the rules of various courts provide some protection for indigent litigants through a legal mechanism that allows people who cannot afford litigation expenses to seek justice without paying the usual fees.

Dr Layonu revealed that the High Court rules generally contain provisions on how financially disadvantaged litigants can apply to institute proceedings in forma pauperis.

The SAN explained that whether an individual qualifies depends on the circumstances of each case and whether the applicant satisfies the conditions stipulated by the relevant court rules.

Dr Layonu recalled that Nigeria previously had a more functional legal aid system designed to assist people who could not afford legal representation, particularly in criminal cases and some civil matters.

However, the SAN expressed concern that some of these mechanisms now exist largely in theory rather than in practical operation.

In his words: “In the old days when Nigeria was a bit better than or more comfortable than now, we also had legal aid that would cater, not for all cases, but for some cases, especially in terms of criminal defence and some civil matters.

“The objective was to ensure that poverty did not prevent citizens from ventilating their rights before the courts.

“But we all know that some of these things now only exist in theory or in the statutes. They are practically not really functioning.”

He also identified increasing court filing fees and the growing adoption of electronic filing as additional challenges for litigants.

The SAN argued that courts themselves are under financial pressure and periodically increase filing fees in an attempt to meet operational costs.

“The transition to technology-driven court processes, while desirable, can also create additional expenses for litigants and lawyers.

“Now, we are even going to the realm of technology where a lot of courts are now requiring that processes be filed electronically,” he posited.

Dr Layonu hinted that filing electronically could require litigants and lawyers to have access to equipment such as scanners, photocopiers, and other technological tools.

The lawyer stressed that whatever reforms are introduced into the justice system, care must be taken to ensure that poor Nigerians are not discouraged from approaching the courts because of their financial circumstances.

For his part, another senior legal luminary and rights activist, Chief Malachy Ugwummadu, contended that the cost of justice should not be assessed solely from the perspective of lawyers’ fees and court filing charges.

He said the cost of justice also includes the time required to conclude cases, bureaucratic obstacles and the difficulties citizens face in enforcing judgments after they have been delivered.

In his words: “That’s a very relative question, because you cannot assess and compare if you have other jurisdictions to juxtapose with ours. Nevertheless, you can safely say that justice is not a cheap commodity in Nigeria today.”

While noting that the financial cost of litigation represents only one aspect of the broad problem confronting access to justice, Ugwummadu pointed out that although fundamental rights enforcement proceedings may be relatively cheaper to institute than some other forms of litigation, prolonged delays in the justice system can impose financial and emotional burdens on litigants.

The human rights advocate revealed that citizens who begin legal proceedings enthusiastically can become weary after spending several years pursuing their cases.

In his view, “In criminal cases, for instance, the witnesses, some have passed on or relocated, or become very lukewarm in testifying any longer. In some other cases, the body of evidence you have may get lost.”

The senior lawyer also pointed to situations where judges are transferred or die, potentially resulting in proceedings commencing de novo, thereby compounding delays in cases that have already lasted several years.

Ugwummadu also identified enforcement of court judgments as one of the most difficult aspects of Nigeria’s justice system.

The human rights lawyer queried how judgments against law enforcement agencies would be enforced, given that the police and other security agencies often play a role in enforcing court orders and judgments.

“For instance, if you obtain a judgment against the Nigerian Police for the abuse of the right of a citizen, who would think, even not being a lawyer, who enforces a judgment of court?” he questioned.

According to the lawyer, while a judge delivers the judgment, enforcement is ordinarily carried out through the sheriffs of the court, with the assistance of law enforcement agencies where required.

To him, “This is an issue,” even as he added that the challenge becomes more complicated when the judgment is against the same agencies expected to assist in enforcement.

Chief Ugwummadu referenced what he termed the difficulties involved when judgments obtained in one jurisdiction have to be registered in another jurisdiction before they can be enforced.

He therefore contended that the cost of justice in Nigeria should be viewed more broadly than the financial expense of hiring lawyers and filing court processes.

The senior lawyer said, “It is expensive not just in terms of financial implications; it is expensive in terms of the time that goes into it. It is also expensive in terms of bureaucratic bottlenecks, and it remains expensive, even more so, in relation to the available enforcement mechanisms.”

But another human rights lawyer, Ige Asemudara, offered a different perspective on the issue, particularly regarding election petitions.

For Asemudara, most parties involved in election litigation cannot strictly be classified as ordinary citizens because they are generally politicians or political actors with the financial capacity to engage lawyers.

The lawyer posited that election petitions are often complex and demanding, which, according to him, require lawyers to devote time and resources to them.

In his words: “For election matters, my candid opinion is that those politicians are not ordinary citizens. Most of them can afford what they have been charged.”

Asemudara revealed that election cases can require legal luminaries to work extensively, sometimes on a day-to-day basis, making it reasonable for legal practitioners to charge fees that reflect the time, energy, and resources invested.

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The human rights advocate explained that the same principle applies to commercial litigation, where he said legal fees may depend on the complexity of the dispute, the parties involved, and the amount of work required from the legal team.

While stressing that greater concern should be shown towards ordinary citizens seeking to enforce fundamental rights or defend themselves against criminal allegations, the senior lawyer argued that legal fees should be minimal or moderate in cases involving fundamental human rights and criminal defence, particularly where the affected persons are unable to afford legal representation.

Asemudara charged government and civil society organisations to provide legal assistance to vulnerable citizens who cannot afford lawyers.

According to the human rights lawyer, “I believe that the charges that lawyers should bill should be minimal or moderate. And where there are no lawyers, the government and civil society should provide lawyers for those areas.

“Citizens should not be denied fundamental rights protection or a fair hearing simply because they lack the financial resources to hire legal practitioners.

“Regulatory bodies within the legal profession should also develop mechanisms for ensuring that vulnerable citizens receive legal representation even where they cannot afford to pay.”

In defending the right of lawyers to charge fees that reflect their professional responsibilities and living expenses, Asemudara stressed that lawyers, like other professionals, have financial obligations, including rent, transportation, vehicle maintenance and other household expenses.

“Legal practitioners should therefore be able to charge fees that enable them to maintain a reasonable standard of living.

“No matter what you know, if you are not living well, clients are not likely to take you seriously,” says Asemudara.

The legal luminary added that lawyers representing high-ranking public officials and politicians should be able to earn fees commensurate with the demands of such engagements.