The Requirement For Deposit Of N50k Will Bar Indigent Litigants From Accessing Court of Appeal — Lawyer Calls For Abrogation Of Rule

*Says N50 Is Exhort ant And Twice Minimum Wage
*Calls On NASS To Make Rules To Guide Procedure For The Court Of Appeal

A Kebbi-based lawyer, Aminu Kalgo has called on the federal government to abrogate the N50,000 deposit made on appeals by litigants, to allow for access to justice.

A new Court of Appeal Rules 2021 (Order 8 Rule 11 and 12), which became effective on November 1, 2021 provides that litigants filing appeals must make prerequisite minimum deposit of N50,000 before appellate courts.

However, Kalgo in a letter dated December 23, 2021 addressed to the Chief Justice of Nigeria, the President Court of Appeal; the Chairman, Senate Committee on Judiciary, Human Rights and Legal Matters; the Chairman, House Committee on Justice; the Attorney General of the Federation and the President, Nigerian Bar Association called for the abrogation of the law in the interest of accessibility to justice.

The lawyer observed that access to justice should have bureaucratic simplicity and cheaper cost to file appeals before the Court of Appeal.

He also stated that unnecessary rise in the cost of appeals will tell on poor litigants, further thicken bureaucratic sophistication as well as gloat access to justice before the Court of Appeal.

“This review will definitely enhance efficacy in the arena of access-to-justice in the Nigerian justice delivery system at the Court of Appeal strata.

“By direct consequence, the new policy for the deposit of minimum of ₦50,000.00 to register an appeal before the Court of Appeal, has added additional bureaucratic impedimenta and a hike in the cost of litigation before the Court of Appeal.

“Access to justice primarily begin by filing/registering a suit/appeal before the court as the inlet or input mechanism to the Justice Delivery System. Therefore, bureaucratic simplicity and cheaper cost to register appeal before the Court of Appeal should absolutely yield greater access to justice before the Court of Appeal. And alternately (unnecessary) rise in cost and further thickening of bureaucratic sophistication – in certain – will gloat access to justice before the Court of Appeal.

“Fully aware though, that Order 8 rule 11 and 12 of the Court of Appeal Rules 2021 seemingly provided safety-net to indigent persons in the provision, the safety-net is ineffective in functionality and will only achieve the contrary by debarring indigent persons to access the Court of Appeal by far a great magnitude, due to the following obvious reasons:

(a) Firstly, the minimum ₦50,000.00 deposit is anticipatory based on speculation of any cost which the Court may award against the appellant in the course of litigation. Simply, it is a demand for a probable obligation, which may or may not arise at all. Even where it arises at the end of the day, the appellant must still have been subjected to performance of obligation before it is legally due. All these are weak premises to form a basis for mandatory sum to be deposited by a citizen/resident to access the Court of Appeal. This is more so, considering the other adverse effects of this provision subsequently mentioned hereunder.

(b) Secondly, prior to the enactment of this new provision, nothing hinders the Court from awarding cost against litigants. The only difference is of principle. Formerly, costs were awarded in actuality, and thus performed on the principle of demand after it is legally due. This system does not prejudice the Court in anyway. At the same time, litigants can seek enforcement of cost awarded. Where any party is in default to an order for cost in a pending appeal, non compliance is to his detriment; because such a party endangers the loss of his right to be heard.

(c) Thirdly, the minimum sum of ₦50,000.00 deposit presents additional bureaucratic impedimenta i.e. the determination of an indigent litigant, which is a question of fact. How this question is to be determined in each instance and case, ought to be indeed an exercise of ‘judicial nature’. However, under the provision, it is going to be determined at-the-mercy of the Gate Keeper of the particular division of the Court of Appeal – The Registrar.

(d) Fourthly, ample discretion is placed in the hand of the registrar without maximum limitation for the sum the Registrar may mandatorily require to be deposited under this provision.

(e) Fifthly, already the ordinary citizen in not subsidised under Our Legal System. The modern capitalist system we run had put in place a parallel independent private business of Legal practice, and the defacto situation is that private litigants cannot conduct their cases before superior courts (like the Court of Appeal in this instance) due to sophistication and the professional nature of the procedure. So, access to justice doubly means the cost of hiring the private services of a lawyer on the one hand, and cost of litigation process fees prescribed by the Court, i.e. for filing court processes, service of summons/hearing notices, procuring attendance of witness, production of records, visit to locus, CTC of Judgment/Order, etc. Even execution of judgment is at the bill of the litigant. Everything of due-course in the pipeline of litigation is sponsored by the litigant(s) except the adjudicatory session of the judge. Now, on top of all these, award of cost against litigants which is not always a due-course in litigation, litigants are mandatorily made to upfrontly deposit the minimum of ₦50,000.00 in anticipation of probable eventuality of award of cost by the Court.

(f) Sixthly, ₦50,000.00 is exorbitant sum to the majority of Nigerians, almost twice the minimum wage in the Federal Civil Service of the nation (₦30,000.00),” the letter reads.

Kalgo further stated that as “a private legal practitioner; I know firsthand that even prior to this provision, many potential appellants to the Court of Appeal abandon their quest for justice for lack of funds to compile and transmit records.

“I practice mainly in Kebbi–Sokoto axis where litigation is relatively cheap. The average minimum for compilation and transmission of records to the Court of Appeal in this axis is ₦50,000.00. Yet many cannot afford that even were lawyers offer to conduct the cases for them Pro bono (free). Many potential appellants to the Court of Appeal cannot afford court expenses for transmission of records (excluding filing fees), of these people – it may be a woman from a remote village seeking for custody of her children, or dissolution of marriage from an unhealthy marriage. Or a farmer who lost his only farm. It could be a child, a woman or young-man seeking justice over inheritance of a farm, cattle or house, etc.”

He called on the President of the Court of Appeal, the Chief Justice of Nigeria, the Attorney General of the Federation, and the President, Nigerian Bar Association to consider issuing “practice directive to the effect of suspending/ abrogating Order 11 and 12 of the Court of Appeal Rules 2021 for the sake of the multitude vulnerable voiceless citizens of Nigeria.

Kalgo also called on the National Assembly, which he said has delegated to the President Court of Appeal to make subsidiary regulation to guide procedure for the Court of Appeal, “to give this call effect, either under its supervisory powers, or cause a public hearing on the issue (to review same).”