The constitution guarantees every Nigerian the right to affordable acccess to justice. But court rules and procedures are often a barrier to justice for the man on the street, writes ADEBISI ONANUGA.
THE age-long problems of justice unaffordability and justice delivery delay appear to be defying solution. Last Monday, Chief Justice of Nigeria (CJN) Ibrahim Tanko Muhammad observed that the problems seem to be increasing.
Muhammad, who declared open the 2020 all Nigeria Judges’ Conference of Lower Courts, at the National Judicial Institute (NJI) in Abuja, harped on the need for judicial reform in this area.
Other stakeholders have also expressed concern over the problems. Muhammad’s predecessor Justice Walter Onnoghen (retd) made a similar call two years ago.
Speaking in Abuja during the opening of an orientation course for justices of the Court of Appeal in 2018, organised by the National Judicial Institute (NJI), Onnoghen said he was gravely concerned about the snail-speed of justice delivery, adding that appeals took a longer time to be completed, thereby causing inconvenience for parties.
Justice delivery delay
Section 36 of the Constitution makes speedy disposal of cases a human right. The section requires that in all suits for determination of civil rights, the trial must be within a reasonable time.
President Muhammadu Buhari, addressing the 60th Annual Conference of the Nigerian Bar Association (NBA) on August 26, queried the length of time it took for courts to conclude cases despite the constitutional provision.
He proposed a solution: Criminal cases from the High Court to the Supreme Court should be concluded within a year while civil cases should end within 15 months.
This was necessary, he explained, because justice administration in the country was “terribly slow.” He backed his claim by referencing his election petition cases after the 2003, 2007 and 2011 presidential polls, which, according to him, took too long for the courts to decide and were eventually dismissed.
The President wondered why it took so long to arrive at a verdict, adding that if he had won any of the cases, someone who did not legitimately win the election would have been in office all that time.
Buhari recalled that things changed in 2019, when he was not the petitioner; but a respondent in the case of Atiku (Abubakar) vs Buhari: the entire process took just over six months.
He explained how that came about.
Buhari said: “What was the difference? The law had changed since my own in 2003, 2007 and 2011. Time limits for election petitions had been introduced. Now, everything must be done within six- to eight-month period.
“My question then, is why can’t we have a time limit for criminal cases? Why can’t we have a rule that will say a criminal trial all the way to the Supreme Court must not exceed 12 months?
“Why can’t we do the same for civil cases? Can’t we say that civil cases must not go beyond between 12 and 15 months? I think that for me will be stepping forward.”
Justice unaffordability
The problem of justice unaffordability was the focus of a 2016 research by three lecturers – Dahiru Jafaru Usman of the Faculty of Law, Bayero University, Kano, Nurli Yaacob and Aspaella A. Rahman of the School of Law, University of Utara Malaysia, in Malaysia.
It was titled “An Inquiry on the Affordability of Legal Services and the Appropriateness of the Regular Courts for Consumer Redress in Nigeria”
The report identified prohibitive, staggering and high attorneys’ and court fees as the greatest barriers to access to justice in many jurisdictions. It noted that although access to justice crisis was a global issue, the Nigerian case was worrisome.
According to the study, delays, cost of lawyers’ service and the cost of litigating disputes before ordinary courts are the twin barriers against access to justice in the country. The report quoted statistics that over 100 million Nigerians lacked access to justice and representation.
It found that even those who summoned the courage to approach the courts may not get the redress in their lifetime as cases spanned in some occasions over three decades before being decided.
Why is this so?
The researchers said: “Access to justice crisis in Nigeria is largely attributable to the cumbersome nature of the judicial system, the cost, and the poverty in the country.”
The report said although for decades the legal aid scheme was one of the measures initiated to cushion the rising justice crisis, evidence showed that legal aid funding globally has plummeted and Nigeria was not an exception. The legal aid scheme is underfunded and understaffed thereby compounding the problem.
Unaffordability of filing processes, legal services
The study further found that lawyers’ services, and services of the court, particularly for filing of processes, were expensive and beyond what an ordinary individual could afford. They are determined by the nature of the case and the amount of claims in the processes.
The researchers found that an expensive judicial system thrived in Nigeria despite the country’s high poverty rate.
They said: “Although the inability to afford legal services is a problem to millions of people considering the poverty rate in Nigeria, it is safe to argue that the poor cannot afford these expensive legal services and court related fees.”
Discouraging effects of delays
Justice delay is justice denied. Filing a case begins with the process of finding a lawyer, and after that the financial requirements coupled with the likelihood of unnecessary adjournments can be very discouraging.
“The cost of having a lawyer is another issue. At the end of the day when you look at your problem, compare it with the time you will spend in going to court and the amount of money you spent you feel discouraged,” the researchers said.
How to solve the problem
How can litigants access affordable court services with the high cost of filing of processes and applications, delay in justice delivery and high amount charged by counsels, particularly SANs, for accepting briefs? What are the ways out?
Constitutional lawyers including Dr Paul Ananaba (SAN), the convener, Access to Justice (A2J), Joseph Otteh, former chairmen, Nigerian Bar Association (NBA), Ikorodu, Dotun Adetunji and Bayo Akinlade, said the cooperation of all stakeholders in the justice delivery system would be required to bring sanity into the system.
How rules of the courts negate affordable justice
Dr Ananaba said it was an age-long problem. “About 20 years ago, even in Ikeja when filing fees were increased, I served as secretary of the committee set up by the NBA in Ikeja to address it.”
He agreed that the constitution provides for access to justice but, that gradually, “the rules of the court have been amended to make filing very difficult.”
He said in Lagos, for example, “if your claims are high, your filing fees will be very high. For a N10 billion suit, your filing fees will cost about N5.6 to N5.7million. Where will you get that to file the suit? That is the reality. So, it is tough. If you don’t have the money, you will know how it feels to be denied justice.”
Ananaba noted that it was important that the rules of court as regards filing fees should not be a stopper to people ventilating their rights.
He said: “It is unconstitutional for government to use filing fees as a way of revenue generation. Again, because when cases last too long, the more expensive they become. We should also look at it from that perspective. If cases had been self-seeking, they would cost less. Take for example if a person is working and is on transfer, he has to come if he is required and lawyers will charge fees as the case progresses. Also, litigations have scale of fees, any lawyer can charge any amount of money and, like you know, the bigger the lawyer, if he is a Senior Advocate of Nigeria (SAN), the fees will be higher and all these fees will be borne by the litigant.”
Ananaba described the development as one that was very complicated. He said for instance that “if a SAN has a chamber that attracts quality lawyers, he has to pay salaries, he has to run the office, he has to pay for diesel or petrol and all taxes and electricity.”
To him, it is important that the stakeholders, the Bar, the Bench, government and the society should come together to address this issue because it is very complicated.
Pressure from courts over costs
Otteh shared the concerns of the CJN.
He said: “Looking at the various points within the court system where costs are escalating outside of professional retainerships, you might see that the pressure is coming from the court system itself.”
According to him, the costs of administering court services are rising at levels that many Nigerians cannot keep up with.
“We can explore two aspects of this rising costs problem. A first form of this escalation comes from chief judges. We see chief judges raise filing and other process fees from time to time and this negatively impacts on the ability of court users to access courts or find fair remedies for their grievances,” Otteh said.
He also observed that, in many cases, court users forgo fair claims because they were unable to pay the initial filing costs associated with the claims.
Otteh said: “Some chief judges say they have to do this to supplement the judiciary’s income as the budget is usually not sufficient for court operations….
“There are important constitutional issues that have to be resolved in this area because the right of access to courts is a constitutional and indeed fundamental one, and there must be limits to which court users should be pushed to make up budgetary deficits.”
The second aspect has to do with the way judicial services are delivered. He noted that the country’s justice delivery procedures are still integrated within inefficient and expensive manual systems.
His words: “If you apply for a certified true copy of a court’s judgment for example, you will probably return to court multiple times – in some cases running into months – to follow up on getting what is requested. This entails significant waste of time, labour and resources. In the 21st Century, we can certainly do better than this. Again, this is what only the judiciary can fix. There are, of course, other factors bearing on this question.”
Otteh urged the CJN and the NBA “to examine the issue of access to court a lot more closely; a lot can be remedied and improved upon by adopting better institutional approaches or making relatively simple adjustments to how courts function.
“The judiciary must offer better accountability for ensuring ease of access to courts which, many might argue, is not happening very much at this time. The CJN’s intervention offers an opportunity – a distress call if you like – to take urgent action to defend the constitutional right of all persons within our borders to access justice and we hope the CJN can take further tailored action to deal with this issue.”
Problem compounded by ‘ENDSARS arson’
Adetunji also lamented that things are “upside down in the judiciary and the nation in general now”.
Also using Lagos as a case study, he said: “tThe oldest courts in the country were burnt by hoodlums as an aftermath of the ENDSARS protests. I believe it is criminals who have cases there and do not want their matters to proceed that burnt the courts. I have no other explanation for burning of court buildings.
“The end result of this is that the judicial process which we all complain is slow, is now slower since some judges do not have courts anymore and are made to share courts in turn. Files are no longer available, limited furniture and no computers or stationeries are in place.
“When these things were in place, we were looking for solutions, but I bet now we are in a deep mess. The judiciary is now moribund and I am sorry for the legal profession.”
Adetunji noted that the cost of filing was high, “although it’s not officially increased now but it leaves room for extortion as it takes several hours, if not days, to file an ordinary motion in court these days. If you receive help or grace from a staff, you are bound to “appreciate”, and of course the cost of litigation increases by the bottlenecks created.
He said the multiplier effect of this is that lawyers or a SAN who got things done easily when the courts were intact, may even be tempted to charge more as he spends more with the present court sharing process and highly cumbersome filing process amongst various other hitches.
According to Adetunji, it would be difficult to have easy access to justice now until the courts are rebuilt and the judiciary structurally restructured.
He asked: “How would litigants get affordable court services now? Lawyers whose offices were burnt by the hoodlums will have to buy again, not only wigs and gowns but all their law books and rebuild their offices.”
Adetunji reasoned that not much assistance would be expected from the government which is looking for over a trillion naira to rebuild Lagos.
Concern over growing unaffordability of court services
Aside from delay associated with justice delivery system, Akinlade also expressed his concern over the growing unaffordability of court services to litigants.
He said since the Constitution saddled the judiciary with the task of justice administration, it is imperative that citizens must get easy access to courts to enable them ventilate their grievances and have their cases adjudicated.
Akinlade said litigants could only access affordable court services when the cost of filing of processes and applications, delay in justice delivery and high amount charged by counsels, particularly SANs for accepting briefs, are reviewed.
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