Litigation

AN ANALYSIS OF PRIVILEGE COMMUNICATION UNDER THE NIGERIAN EVIDENCE ACT

The general rule in evidence is that all relevant evidence is admissible. However, like most rules in law, this rule is not without its exception. Privilege communication is an exception to the admissibility of all relevant evidence. Therefore, a piece of evidence may be relevant but will not be admitted by the Court because it is protected by privileged communication. The main objective of privileged communication is to entitle a witness to withhold relevant evidence from a Court proceeding or prevent the giving of such information by another person. This is done to protect confidential information and important public policy and it applies to both oral and documentary evidence.

Likewise, there are exceptional circumstances where privileged communication will be considered admissible evidence and thereafter admitted into evidence. The article will discuss the types of communications that are considered privileged communication and its exceptions.

Types of Privilege

There are two types of Privileges;

  1. State Privilege.
  2. Private Privilege.

State Privilege

State privilege affords to persons who occupy public offices. It cannot be easily waived. This covers persons who work in the public service of the country. Public service has been defined by Section 318 of the Nigerian constitution to mean the service of the State in any capacity in respect of the Government of the State. The following are the aspects of privilege

  1. Affairs of State:

According to Section 190 (1) of the Evidence Act (EA), “subject to any direction 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or of the Governor of a State where the records are in the custody of a state, no one shall be permitted to produce any unpublished official records to affairs of state, or to give any evidence derived from such record except with the permission of the officer at the head of the Ministry,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”

Also, Section 191 of the EA provides that, “no public officer shall be compelled to disclose communication made to him in official confidence when he considers that the public interest will suffer by the disclosure”.

However, such official record or oral evidence may, on the order of the Court, be produced to the Judge alone in chambers, and the Judge after careful consideration will decide as the case may be that such official record or oral evidence be received as evidence in the proceeding which shall be received in accordance to the provision of Section 36(4) of the Nigerian Constitution which provides that “if in any proceedings before a Court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the Court or tribunal that it would not be in the public interest for any Matter to be publicly disclosed, the Court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”

  • Judges and Magistrates:

Section 188 of the EA provides that, except for a special order of the High Court of a state or Federal Capital Territory or federal High Court, no Justice, Judge, Grand Kadi, Magistrate or other persons of which a proceeding is held before him shall be compelled to answer any questions as to his own conduct in Court, or as to anything which came to his knowledge in Court. However, such judge, magistrate, Justice, and Grand Kadi may be examined as to other matters which occurred whilst he was so acting.

  • Information as Commission of Offences:

Section 189 of the EA provides that, no magistrate, police officer, or other public official authorized to investigate or prosecute offences under any written law shall be compelled to reveal the source of any information concerning the commission of an offence in which he is authorized to investigate or prosecute. Also, this section prevents public officers employed in any part of the public revenue from being compelled to reveal the source of any information regarding the commission of any offence against the public revenue.

Private Privilege

  1. Communication in Marriage:

Section 182 (3) of the EA has excluded a husband and wife from being compellable witnesses where any of them is a party to a case with regard to communication made during their marriage without the consent of the husband or wife as the case may be. The rationale is that their communication is deemed a privileged communication. However, this does not apply to the following instances;

  1. Where the Suit is between the husband and wife.
  2. Where the proceeding in which the married person is prosecuted under any of the offences listed in section 181(2) of the EA.
  3. Where the proceeding relates to section 36 of the Criminal Code with an offence against the property of the wife or husband.
  4. Where the proceeding relates to offences dealing with the husband or wife inflicting violence on his or her wife or husband.
  • Professional Communication:  

This comes to play when communication is made between a legal practitioner and a client and the person is making such communication in his professional capacity or for the purpose of giving legal advice. This privilege is in two perspectives:

  1. Legal practitioners are not permitted except with the express consent of their clients, to disclose any communication disclosed to them in the course of employment or any document that has been made available to them by their client.[1]
  2. Section 195 of EA provides that a client cannot be compelled to disclose any communication between him and his legal practitioner unless he is a witness in the case where he may be compelled to disclose such communication as the Court may deem necessary.

This privileged communication does not cover communication made in furtherance of an illegal purpose or communication made to facilitate a crime.

  • Privilege Against Self-incrimination:

Section 183 of the EA provides that, no one is obligated to answer any question asked if such an answer in the opinion of the Court has the tendency of exposing the witness or his or her spouse to any criminal charge or penalty or forfeiture. This has been emphasized by the constitutional provision of section 36(11) of the Nigerian Constitution which provides that, a person who is tried for a criminal offence shall not be compelled to give evidence at the trial. This translates to the right to remain silent.

However, this privilege is not applicable in the following cases:

  1. a person charged and being a witness may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged;
  2. where answering questions would tend to expose an individual only to some kind of civil liability or establish that the person owes a debt;
  3. There is no privilege for a witness who is giving evidence under section 458 of the Criminal Procedure Act in an inquiry directed by the Attorney General of the Federation or State.
  • Production of Title Deeds by a Witness, not a Party:

A witness who is not a party to a suit may not be compelled to produce his title deeds or any document creating a charge to any property, the production of which could incriminate him, according to Section 184 of the Act. Section 185 of the Act broadens the privilege to include situations in which the deed is in the possession of someone else.

  • Statements made without Prejudice:

Section 26 of the EA provides that, no admission is relevant if it is made under an express condition that evidence of it is not to be given, or in circumstances in which the Court infers that the parties agreed that the evidence of it should not be given. This is done to promote amicable means of settlement of disputes between aggrieved parties without the interference of the Court through any agreed alternative dispute resolution. This also goes to guarantee that, whatever is said during a settlement proceeding cannot be admitted in Court. This privilege applies where it is clear from the circumstances of the case that the intention of the parties is to settle pending litigation.

  • Diplomatic Immunity:

Section 1 of the Diplomatic Immunities and Privileges Act 1962 provides immunity from Suit and legal process in respect of the following persons.

  1. Foreign envoy and consular officer.
  2. Members of the families of those persons.
  3. Members of their official or domestic staff.
  4. Members of the families of their official staff.

CONCLUSION

The rule of privilege communication provides for instances where relevant evidence may not be admissible. Therefore, legal practitioners are enjoined to abreast themselves with this rule and the exceptions therein.


[1] Section 192 of Evidence Act

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About Oyetola Muyiwa Atoyebi, SAN and Joy Ayara

Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm). Mr. Atoyebi has expertise in and vast knowledge of Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria. He can be reached at atoyebi@omaplex.com.ng CONTRIBUTOR: Joy Ayara Joy is a member of the Corporate Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Law Practice She can be reached at joy.ayara@omaplex.com.ng