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Home » Articles » Privilege in the Nigerian Law of Evidence (State, Private)

Privilege in the Nigerian Law of Evidence (State, Private)

Privilege in Evidence

Privilege

Privilege is a rule of evidence that allows a witness to refuse to disclose information or provide evidence about a particular fact or to bar such evidence from being disclosed or used in a judicial or other proceeding.

Similarly, on the ground of public policy, relevant evidence may be excluded when it concerns matters of state interest.

In Ahamba V State (1992) 5 NWLR (Pt. 242) 450, the court held that;

“Generally, a witness who is competent and compellable to testify may, in certain cases, refuse to answer particular questions on relevant matters on the ground of public policy or privilege.”

 Thus, under privilege, a witness has a right or duty to refuse to disclose a relevant fact by answering a question or to produce a relevant document. In other words, where a witness is competent and compellable to give evidence and is entitled to claim privilege, either for himself or the person he is representing and does so, he may be entitled to refuse to give evidence or produce document on matters relevant to the issue before the court.

The rule of Privilege is founded upon the grounds of public policy. In Fawehinmi v. Akilu (1994) 6 NWLR (Pt. 351) 387, the court held that, “The immunity from suit of court processes and proceedings is founded upon grounds of public policy. It is not a question of absence of malice in the party sued but a rule of public policy which requires that a Judge, in dealing with a matter before him; a party in preferring or resisting a legal proceedings and a witness in giving evidence, oral or written in a court of justice, should be able to do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel.”

Classes of Privilege

Broadly speaking, privilege could be classified into two, namely: State Privilege and Private Privilege.

  1. State Privilege: relates to affairs of the state, judicial and other official information, as well as information leading to the detection of crime.
  2. Private Privilege: protects from disclosure matters which affect a person in his private capacity. This may relate to privilege against self-incrimination, or privilege in professional relationships.

Holder of Privilege

The holder of a privilege may be the witness himself, his spouse (as in self-incrimination), or the person for whom the witness testifies. Where the privilege is that of the witness himself, he cannot be compelled to disclose the matter by way of oral evidence or tendering document. And where the privilege is that of another, the witness will not be allowed to give the evidence or tender document unless the person whose privilege it is waives the privilege.

Privilege of Secondary Evidence

It is important to state that privilege relating to a document also extends to secondary evidence of the document. However, where the other party has obtained the privilege document, the rule does not prevent him from tendering it or giving secondary evidence of it except when the document relates to affairs of the state.

In Rumpling V. DPP [1964] AC 814, A husband charged with murder wrote a letter to his wife confessing the crime to her. Such a letter is a privileged matter between them being communication between spouses. However, the letter was intercepted and it got into the hands of the prosecution. It was held that it could be received in evidence as part of the prosecution’s case.

However, in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 2 ALLER 716, the court held that a party entitled to a privilege in a civil case can secure an injunction against any person in possession of the document, to prevent it from being tendered before the court.

But this relief or any other cannot avail a defendant facing a criminal trial because public interest should always be held to be above private interest. In Butler v Board of Trade [1970] 3 ALLER 593, Goff, J., held that the prosecution in a criminal trial could produce in evidence a letter which has come into their hands almost fortuitously.

Claim of Privilege

The Claim of Privilege is made by the witness himself. But there is nothing preventing counsel from making the claim on his behalf. In some cases, the judge may but is not bound to tell the witness that he needs not answer the question put to him.

Privilege can be raised at any point during the oral hearing of the matter. And ones raised, a judge has the duty to determine whether or not it avails the witness. And in so determining, the judge is at liberty to call further oral or documentary evidence.

State Privilege

Judicial Officer

Section 188 Evidence Act 2011.

“No Justice, Judge, Grand Kadi or President of a Customary Court of Appeal and, except upon the special order of the High Court of the State, or of the Federal Capital Territory, Abuja or the Federal High Court, no magistrate, or other persons before whom a proceeding is being held shall be compelled to answer any questions as to his own conduct in court in any of the capacities specified in this section, or as to anything which came to his knowledge in court in such capacity but he may be examined as to other matters which occurred in his presence whilst he was so acting.”

In Onagoruwa v. I.G.P. (1991) 5 NWLR (Pt. 193) 593, the court held that “Judicial immunity arises from two angles:-  (a)immunity under the common law; and  (b)immunity as provided by statutes: … “Judicial immunity, though pot provided for in the Constitution, is an important common law safeguard of the independence of the judiciary as the third arm of government. As an important safeguard, the courts have zealously and jealously guided and guarded its application in the judicial process essentially in favour of the judge qua adjudicator.”

However, judicial officers can give evidence of collateral evidence while they are sitting. For instance, an attempt to free or rescue a prisoner in court by members of his gang.

Information as to Commission of Offences

Section 189 Evidence Act 2011.

“No magistrate, police officer or any other public officer authorised to investigate or prosecute offences under any written law shall be compelled to disclose the source of any information as to the commission of an offence which he is so authorised to investigate or prosecute and no public officer employed in or about the business of any branch of the public revenue, shall be compelled to disclose the source of any information as to the commission of any offence against the public revenue.”

By virtue of this provision, the name of the informant or of the person to whom the information was given or the nature of the information or any other question as the channel of its communication or what was done under it are protected from disclosure in evidence.

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In Christian Nwarata V. Chidi Egboka [2006] ALLFWLR Pt. 338 p. 768, the police got information that the appellant was being detained by the respondent. Officers therefore came in and executed a search warrant in the house of the respondent during which exercise they found the appellant chained in one of the rooms in a very terrible position with swollen face. The police removed the chains, took his photograph and thereafter took him to the hospital for treatment. On trial, Muntaka-Coomassie JCA (as he then was) dismissed the respondent’s claim that since the PW1, the police officer, had failed to disclose while giving evidence who his informant was, the appellent had failed to discharge the burden of proof placed on him by the Evidence Act.

Evidence as to State Affairs

Section 190(1) Evidence Act 2011

“(1) Subject to any directions of the President in any particular case, or of the Governor of a State where the records are in the custody of a State, no one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived from such record except with the permission of the officer at the head of the Ministry, Department or Agency concerned who shall give or withhold such permission as he thinks fit:

Provided that the Ministry, Department or Agency concerned shall, on the order of the court, produce to the judge the official record in question or, as the case may be, permit evidence derived from it to be given to the judge alone in chambers and if the judge after careful consideration shall decide that the record or the oral evidence, as the case may be, should be received as evidence in the proceedings, he shall order this to be done in private as provided in section 36(4) of the Constitution.”

Note that “records relating to the affairs of state” mean the records of matters the publication of which may affect the public interest and/or public security or international communications.

In Conway v Rimmer [1968] AC 910, the appellant sued the respondent for malicious prosecution. The court had to determine whether the production of certain documents would be injurious to public interest. Lord Reid noted that this privilege is weighed between the need to do justice against the need to protect public interest. The court held that Crown privilege can be claimed for certain documents, and that the Court has power to examine documents privately.  

Public Officers

Section 191 Evidence Act 2011

“No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure:

Provided that the public officer concerned shall on the order of the court, disclose to the judge alone in chambers the substance of the communication in question and if the judge is satisfied that the communication should be received in evidence this shall be done in private in accordance with section 36 (4) of the Constitution.”

The term “public officer” is not defined in the Evidence Act, however it had been defined in the Interpretation Act as meaning a member of the public service of the federation or of the public service of a state within the meaning of the constitution.

In Moronu v. Benson & Ors (1966) N.M.L.R. 66, the petitioners in an election applied for an order that the electoral officer sued as the third respondent should produce for inspection all documents relating to the conduct of the election. The electoral officer filed a counteravidavit asking that the document listed as Item 13, 14 & 15 on appendix A be regarded as privilege on the ground of public interest. Counsel relied on S. 167 of the Old Evidence Act (now S. 191 Evidence Act, 2011) as affording the protection. The court held that by virtue of the said section public interest precluded the production for inspection of the report of an electoral officer in charge of each polling station.

Private Privilege

Professional Communication Between Clients and Legal Practitioner

Section 192 (1) Evidence Act 2011

“(1) No legal practitioner shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure –

(a) any such communication made in furtherance of any illegal purpose;

(b) Any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.”

In R. V. Eguabor, (1962) 1 ALL NLR 541, the accused was tried for murder. During the trial, a statement allegedly made by him was tendered in evidence and read in court. The counsel to the accused who did not object to the statement being admitted said that his original instructions were that the accused went to tap palm wine on the day in question and the statement was thereafter admitted.

On appeal, it was held that the counsel’s statement as to the original instructions he had received was one which he ought not to have made and that the conduct of the counsel had occasioned a miscarriage of justice.

In Crompton Amusement Machines Ltd v Customs and Excise Commissioners [1972]2 ALL ER 353 at 376, the court held that the fact that the legal practitioner is in full time employment of the client and is on a monthly salary is immaterial.

This Privilege is of the client and not of the legal practitioner. It can only be waived by the client’s express consent.

In the recent case of Mekwunye v. Carnation Registrars Ltd. (2021) 15 NWLR (Pt. 1798) 1, the court held that, “It is the duty of counsel, having been trained professionally to preserve his client’s confidence and resultantly must not disclose any confidential communication made to him by his client, without the client’s knowledge and consent. The counsel/client relationship is sacrosanct and privileged. In the instant case, the trial court erred and breached the provisions of section 192(1) of the evidence act 2011 and rule 19 of the Rules of Professional Conduct for Legal Practitioners 2007.”

Section 192 (2) Evidence Act 2011

It is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client.

Section 192 (3) Evidence Act 2011

The obligation stated in this section continues after the employment has ceased.

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Application to interpreters and clerks of legal practitioners

It is important to note that the provisions of S. 192 Evidence Act apply to interpreters and clerks of legal practitioners. | Section 193 Evidence Act 2011

The provisions of section 192 of this Act shall apply to interpreters and the clerks of legal practitioners.

In Akintoye V. Omole (unreported) delivered on 6th June 1978, the defendant came to brief a legal practitioner in respect of a suit without knowing that the legal practitioner was already acting for the plaintiff. On getting to the chambers of the legal practitioner, the defendant met the clerk to whom he made some disclosure before the clerk took him to the legal practitioner who refused the brief. It was held that the communication to the managing clerk was privilege.

In Dawaki Gen. Ent. Ltd. v. Amafco Ent. Ltd. [1999] 3 NWLR (Pt. 594) 224, “By virtue of sections 170-173 (now 190-193) of the Evidence Act, no disclosure of any communication made to the legal practitioner in the course of and for the purposes of his employment as a legal practitioner by or on behalf of his client is allowed. This kind of communication is the one regarded as privileged communications i.e. statements made by certain persons e.g. attorney-client, husband, wife, within a protected relationship. In the instant case, the evidence given by the legal practitioner was on matters known to both parties and cannot be said to enjoy any privilege.”

Section 194 Evidence Act 2011

If any party to a suit or proceeding gives evidence in such suit or proceeding, whether at his own instance or otherwise, he shall not be deemed to have by this reason consented to such disclosure as is mentioned in section 192 of this Act and, if any party to a suit or proceedings calls any such legal practitioner as a witness, he shall be deemed to have consented to such disclosure only if he questions such legal practitioner on matters which, but for such question, he would not be at liberty to disclose.

Doctor & Patients

There is no provision in the Evidence Act 2011 that communications between a doctor and his patient is privilege. Consequently, such communication does not enjoy privilege under the law. However, the ethics of the medical profession prescribes that a doctor should refrain from disclosing to a third-party information which he has received professionally or indirectly in his professional relationship with the patient.

However, the rules of ethics of any profession must give way to the rules of law. Therefore, where there is a legal obligation on the doctor to make a disclosure, he must make it, whether such an obligation arises from statutory provisions or order of a court.

In Hunter V. Mann (1974) QB 767, Justice Boreham held that, “The doctor is under a duty not to disclose (voluntarily), without the consent of his patient, information which he, the doctor, has gained in his professional capacity.”

Priest & Penitent

There is no provision in the Evidence Act protecting communication between the Priest and penitents. And such is not privilege in law. They are fairly common between a Roman Catholic priest and members of his religious sect, and they usually take the form of confessions of offences ranging from minor to rather serious ones. The predominant view is that even though in strict law, the privilege does not exist, a priest should not be required to give evidence as to confession made to him.

In R v. Griffin (1853) 6 Cox CC 219, a Church of England workhouse chaplain was called to prove conversations with a prisoner charged with child-murder whom, he stated, he had visited in a spiritual capacity. The judge, Baron of the Exchequer Sir Edward Hall Alderson, strongly intimated to counsel that he thought such conversations ought not to be given in evidence, saying that there was an analogy between the necessity for privilege in the case of an attorney to enable legal evidence to be given and that in the case of the clergyman to enable spiritual assistance to be given. He added, “I do not lay this down as an absolute rule: but I think such evidence ought not to be given”.

The trial judge should be able to exercise his discretion on whether or not to permit the disclosure of such communication whenever such situation arises.

In 1823, in the case of the R v. Redford, which was tried before William Draper Best, 1st Baron Wynford, Chief Justice of the Common Pleas on circuit, when a Church of England clergyman was about to give in evidence a confession of guilt made to him by the prisoner, the judge checked him and indignantly expressed his opinion that it was improper for a clergyman to reveal a confession.

Production of Title Deeds of a Witness

Section 184 Evidence Act 2011

No witness who is not a party to a suit shall be compelled to produce his title – deeds to any property or any document by virtue of which he holds any property as pledgee or mortgagee or any document the production of which might tend to incriminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.

Production of Document which Another Person Could Refuse to Produce | Section 185 Evidence Act 2011

No one shall be compelled to produce documents in his possession which any other person would be entitled to refuse to produce if they were in his possession, unless such last mentioned person consents to their production.

The court has no power to order the production of privilege document in absence of an agreement between the party or a waiver of privilege.

Privilege against Self-incrimination

Section 183 Evidence Act 2011

No one is bound to answer any question if the answer to it would, in the opinion of the court, have a tendency to expose the witness or the wife or husband of the witness to any criminal charge, or to any penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for:

Provided that –

(a) a person charged with an offence, and being a witness in pursuance of section 180 of this Act may be asked and is bound to answer any question in cross – examination notwithstanding that it would tend to incriminate him as to the offence charged;

(b) no one is excused from answering any question only because the answer may establish, or tend to establish that he owes a debt or is otherwise liable to any civil suit either at the instance of the Federal, State, or Local Government or any other person;

(c) Nothing contained in this section shall excuse a witness at any inquiry by the direction of the Attorney – General of the Federation or of a State, under Part 49 of the Criminal Procedure Act from answering any question required to be answered under section 458 of that Act.

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It is the duty of the court in all cases to decide whether the question could have the tendency to expose the witness or his/her spouse to a criminal charge.

In Blunt v Park Lane Hotel Ltd [1942] 2 ALL ER 187, the court considered the rule against self-incrimination. The witness refused to answer questions tending to expose adultery. Lord Justice Goddard said: ‘The rule is that no one is bound to answer any questions if the answer thereto would, in the opinion of the judge, have a tendency to expose the defendant to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be incurred.’

In Gallaher Ltd. v. B.A.T. (Nig.) Ltd. (2015) 13 NWLR (Pt. 1476) 325, the court determined an issue relating to the disclosure of a material fact. The court held that, “by virtue of section 183 of the Evidence Act, 2011, a witness cannot at any time be made to incriminate himself by compelling him to make a disclosure, answer questions or give information that has the tendency to expose him, his wife or husband to any criminal charge or to any penalty or forfeiture except as provided for by the Evidence Act or any other law of the land.”

(Exceptions – subsections)

Document Marked Without Prejudice

Section 196 Evidence Act 2011

A statement in any document marked “without prejudice” made in the course of negotiation for a settlement of a dispute out of court, shall not be given in evidence in any civil proceedings in proof of the matters stated in it.

Where there is a dispute between two parties it is usual for them to enter into negotiation with the view of settling the dispute. During attempt to negotiate the settlement, parties should speak freely. Therefore, these negotiations are understood by the parties to be conducted without prejudice to their right to bring action to court subsequently if negotiations break down.

During these negotiations parties admit facts orally or in a letter. If such letter is headed without prejudice and written with bona fide intention to arrive at a settlement, the letter cannot be put in evidence in a subsequent action without the consent of both parties to the negotiations.

Similarly, evidence of oral admission made during such negotiations is privileged. If the negotiations were understood by both parties to have been conducted without prejudice to their rights to bring action later.  

In Chief Gani Fawehinmi V. Nigerian Bar Association & Ors (1989) 2 NWLR Pt. 105 p. 558. It came to question whether the admissions made by the plaintiff and three senior advocates for the 1st respondent in the discussion by the parties in an out-of-court mediation in pursuant of settlement were admissible with respect to Section 25 of the Old Evidence Act. The trial court held the said admissions were admissible. The Court of Appeal held that Section 25 (now Section 26) of the Old Evidence Act is irrelevant to the point at issue. However, the Supreme Court, Agbaje JSC (as he then was) held that a correct application of the section is that the admissions were inadmissible.

It is important to state that document will be inferred to be without prejudice if it shown to be in furtherance of settlement, even though the words “without prejudice” were not used.

In George C. Ashibuogwu V Attorney General Bendel State And Anor (1972) LLJR-SC, Keso JSC (as he then was) held that, “It is recognized that in some circumstances, it is not essential that the words “Without prejudice” should have been used: it may be implied that negotiations were conducted on this understanding.”

Similarly, it is also important to state that merely heading a document “without prejudice” does not carry along with it privilege unless the document relate to the settlement of an issue which has arisen or likely to arise between the parties.

In Paul Nwadike & Ors V Cletus Cletus Ibekwe & Ors. (1987) LLJR-SC the Supreme Court determined admissibility of a document tendered as Exh. D in the trial court, a letter written without prejudice by the Respondents to third parties i.e. to a body not a party to the case now before us on appeal. The Court held that the appellants being third parties to Exhibit D cannot claim any protection under it by reason of the fact that it was written without prejudice.

Communication During Marriage

Section 187 Evidence Act 2011

No husband or wife shall be compelled to disclose any communication made to him or her during marriage by any person to whom he or she is or has been married nor shall he or she be permitted to disclose any such communication, unless the person who made it, or that person’s representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for an offence specified in section 182(1) of this Act.

182 (1)

(1) When a person is charged –

(a) with an offence under sections 217, 218, 219, 221, 222, 223, 224, 225, 226, 231, 300, 301, 340, 341, 357 to 362, 369, 370, or 371 of the Criminal Code;

(b) subject to section 36 of the Criminal Code with an offence against the property of his wife or her husband; or

(c) with inflicting violence on his wife or her husband, the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of the person charged.

Privilege in Favour of Journalists

No provision in the Evidence Act that guarantees this.

However, privilege can be claimed by 39 (1), (3)(a) of the Constitution, Freedom of Information Act 2011 which has generally granted to all Nigerians (journalists inclusive) to

In El-Rufai v House of Representative [2003] FWLR Pt. 173 p. 162, The plaintiff was summoned by the House in respect of a publication which was termed defamatory of which he made with respect to the House’s investigation on NITEL privatization. The Court of Appeal held that the House had no legislative competence to summon the plaintiff to appear before the Ethics and Privileges Committee for the purpose of answering question in respect to his alleged defamatory conduct.

In the United Kingdom, unlike in Nigeria, Privilege in favour of journalists is a statutory right as S. 10 of the English Contempt Act 1981 has created a privilege in favour of journalists not to disclose their sources of information.

Credit

Lecture Note – ZACCHEAUUS Olalere Alayinde (Senior Lecturer, Department of International Law, Obafemi Awolowo University, Ile-Ife, Nigeria.)

References

Contributors to Wikimedia projects, ‘Priest–penitent privilege in England – Wikipedia’ (Wikipedia, the free encyclopedia, 9 July 2006) <https://en.wikipedia.org/wiki/Priest–penitent_privilege_in_England> accessed 3 June 2023.

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