A Blow to Access to Justice: The Troubling Implications of the N10m Cost Rule
By Chief Jibrin Samuel
Okutepa, SAN The recent imposition of a minimum cost of N10m on counsel who files an action found to be an internal affair of a political party has sent shockwaves through the legal community. 
This development has raised concerns about the potential impact on access to justice, particularly for those who may not have the financial means to pursue their cases.The rule, which is part of the Electoral Act, has been criticized for being overly punitive and likely to infuse timidity in counsel.
The lack of clarity on what constitutes an internal affair of a party has also been highlighted as a major concern. For instance, do actions taken internally by a party that affect the constitutional or statutory rights of a member or members qualify as internal affairs?This ambiguity places counsel in a difficult position, requiring them to assume a quasi-judicial role when taking instructions from clients.
They must first determine whether the case is an internal affair of the party, which can be a daunting task. The stakes are high, as getting it wrong could result in a hefty fine.The situation is further complicated by the fact that the cost is to be paid by the counsel who filed the case, regardless of whether they continue to represent the client.
If a counsel falls out with the client after filing the case, they may still be liable for the cost. This raises questions about the fairness of the rule.It is also unclear whether the N10m cost covers the case to the appellate level or if counsel will be required to pay the fine at every tier of litigation.
This uncertainty is likely to cause anxiety for counsel taking on such cases.In light of this, counsel are advised to take precautions, such as requiring a deposit of N100m or more to cover costs, aside from their fees. This is a significant burden on litigants and may deter many from seeking justice.
The rule, coupled with the removal of grounds of qualification from the grounds of presentation of election petitions, has been criticized for restricting access to justice. Section 138(3) of the Act imposes a fine of N5m to N10m on lawyers and petitioners who bring petitions outside the two grounds in section 138(1).
A hypothetical scenario illustrates the concern: a lawyer is briefed that candidate A was not qualified to contest an election, and they file a petition based on this ground. If the court finds that this ground is not one of the two specified in section 138(1), the lawyer and petitioner may be penalized.
The Nigerian Bar Association (NBA) has been urged to take action to address these concerns and push for amendments to the Act. It is hoped that the NBA will take steps to protect the rights of lawyers and litigants and ensure that access to justice is not unduly restricted.
The implications of this rule are far-reaching, and it is essential that the legal community comes together to address these concerns and advocate for change.
