Privilege

This concerns cases where certain facts, though relevant to the fact in issue cannot be proved, because their admission is prohibited on the ground of public policy, as being prejudicial to the security of the state or because they infringe the privacy of an individual or on the ground that it is desirable that litigation should end as quickly as possible. Such facts are said to be privileged.

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; when he does so, he may be entitled to refuse to give evidence or produce document on matters relevant to the issue before the court. The privilege in most is that of the witness and not that of the party to the action, except in the case of communication with Legal Practitioner/Adviser; in which the privilege belongs to the party. A party not himself protected by privilege cannot avail himself of it.

Privilege is of two main types, namely:

(a)              Official communication of records of state matters which is referred to as state privilege; and

(b)     Private privilege; that is communication between private persons.

State Privilege

The reason for state privilege is that a revelation of such matters will endanger the security of the state or the good administration of public affairs or justice. State privilege is covered by sections 190, 191, 242 and 243 of the Evidence Act 2011.

Section 190(1) of the Evidence Act 2011 provides that subject to any direction of the President in any particular case, or of the Governor of Evidence as to affairs a State where the records are in the custody of a State, no one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived from such record except with the permission of the officer at the head of the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 head of 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 proceeding, he shall order this to be done in private as provided in section 36(4) of the Constitution.

Further, section 191 of the Evidence Act 2011, provides that 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.

However, by section 242 of the Evidence Act, 2011,

(1)             A witness, subject to the provisions of section 243 of this Act, summoned to produce a document shall, if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to it admissibility and the validity of any such objection shall be decided by the court.

(2)             The court, if it deems it fit, may inspect the document or take other evidence to enable it to determine on its admissibility.

(3)             If for such a purpose, it is necessary to cause any document to be translated, the court may if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence and if the translator disobeys such direction, he shall be held to have committed on offence under subsection (1) of section 97 of the Criminal Code.

In other words the court has the power to inspect such evidence in order to determine whether to disclose it or not. Section 243 provides the procedure on how to deal with such documents. Under that section, if the Minister or Commissioner objects to the disclosure before trial, the procedure will be to file an affidavit; but if the objection is during trial, it shall be by a certificate.

It was hitherto believed that affidavit or certificate by the Minister or the Scheduled Officer is conclusive. This submission was held untenable in lieu of the constitutional provision protecting the interest of citizens. In Maja & Sons Ltd. v. UAC Nig. Ltd (1971)1 NWLR 157, the Lagos High Court held that the affidavit or certificate referred to under section 220 (now section 243) is not conclusive to take the matter out of court’s jurisdiction. The court stated that even if the matters mentioned there is prima facie privilege; it is for the court as an impartial arbiter to determine whether the stated public interest outweighs a person constitutional right to fair hearing: Conway v Rinmer (1968) AC 901; (1968) ALL ER 870 contrasted and distinguished.

Although, the court has power to deny the conclusiveness of the executive affidavit or certificate as to state privilege; there are certain cases however, where the executive is better equipped to assess what is the public interest rather than the court. Facts such minutes of cabinet meetings, communication within the executive arm and between the executive and ambassadors overseas and matter relating to defence can hardly be ordered to be produced by the court.

Section 36(4) & (6) of the CFRN, 1999 (as amended) provides that the proceedings of any court shall be held in public provided that if in any proceedings before a court or such a tribunal, a minister of the government of the Federation or a minister of the Government of a state certifies that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangement for evidence relating to that mater to be hard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.

In the case of African Press Ltd and Anor v AG. Western Nigeria (1965) NSCC 10, the Attomey General of Western Nigeria claimed privilege under section 220 (now section 243) of the Evidence Act when asked by the defence to produce certain official files in a trial for sedition. On appeal to the Supreme Court, the Apex court commented on the Attorney General’s refusal thus.

It remains the duty of the court to uphold the right to a fair trial, and if in a criminal case there are reasonable grounds for supposing that the exclusion of evidence by such a certificate might prejudice the accused in making his defence, the court is bound to say that the prosecution has not proved its case beyond reasonable doubt. The minister is made the judge of what is the public interest required, but he must weigh one consideration against other, and he should be reminded that it is always contrary to one facet of the public interest if relevant evidence is excluded. The relevant evidence is for the court, not the minister to decide.

But, in Maja’s Case supra, the court referred to the English case of Conway v. Rimmer (supra) in which the house of Lords, considering the same issue with regard to state privilege, held that the courts have power to order production of a state document and to overrule a minister’s decision to withhold it on ground of privilege if such a course is dominantly necessary to ensure the proper administration of justice. The reason for the foregoing principle is to avoid injustice which might result especially in criminal proceedings where citizen is prevented from putting up a good defence.

Judicial Privilege

By section 188 of the 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, Federal Capital Territory, Abuja or 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.

Again, by section 189 of the 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. Part II of the Fifth Schedule of the 1999 constitution defines a public officer or who is a public officer.

By virtue of this rule, 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 to the channel of its communication or what was done under it are protected from disclosure in evidence: R v. Hardy. But the production of the sources of information may be allowed if require to established innocence in criminal cases: Rogers v. Secretary of State for Home Affairs (1973) AC 388 @ 407.

Private Privilege     

This type of privilege particularly concerns professional Communications with legal advisers. By section 192(1) of the Evidence Act 2011, No legal practitioner shall at any time be permitted unless with his clients 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 clients or condition of any document with which he has become acquainted in the course of and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course of and for the purpose of such employment.

Therefore, no legal practitioner is permitted disclose any communication made to him in the cause of his client or any other person on his clients behalf, unless the client expressly or impliedly waive that privilege. There are two exceptions to this rule. The first is under section 192(1)(a) which has to with any communication made in furtherance of any illegal purpose even though it is made under the circumstance stated in section 192(1). Judicial authority for this proposition can be found in R v. Cox & Rayttoe (1884) 14 QBD 153, where the solicitor was compelled to disclose what passed between the defendant and himself when the defendant consulted him with a reference to drawing up a Bill of sale which was allege to fraudulent.

The second exception can be found in section 192(1)(b) which is to the effect that, any fact observed by a legal practitioner in the curse of his employment as such, showing that any claim or fraud has been committed since the commencement of his employment could be disclosed. The old English case of Brown v. Foster, where a barrister was held to be able to testify whether a particular entry book belonging to his client which he saw during his trial, in a subsequent proceeding had been falsified is instructive in this regard.

Additionally, the client is not deemed to have waived the privilege by giving evidence in his case; but if he calls the legal practitioner as a witness in that same suit, the client is deemed to have waived the privilege, only if he questions the practitioner on maters which but for such questions are privilege: section 194 of the Evidence Act 2011.

The legal practitioner also must not disclose any advice he may have given to the client in the course and purpose of such employment: Alfred Crumpton Amusement Machines Ltd v. Customs and Excise Commission (No.2) (1972) All ER 353. This type of the privilege, it must be noted apples only between lawyer/client relationships and not to other professional client relationships and it does not cease because the client relationship has ceased: section 192(3) thereof. By section 193 of the Evidence Act 2011, the provisions of section 192 shall apply to interpreters and the clerks of legal practitioners.

Lastly, section 195 of the Evidence Act 2011, provides that no one shall be compelled to disclose to the court any confidential communication which has taken place between him and a legal practitioner consulted by him, unless he offers himself as witness in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known, in order to explain any evidence which he has given, but not others.

Privilege against Self-Incrimination 

By section 183 of the Evidence Act 2011, no one is bound to answer any question if the answer thereto 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 any penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for. Hence this privilege protects a witness from being compelled to answer a question capable of incriminating him or rendering him liable to a penalty or forfeiture.

The scope of this privilege is limited to protection from exposure to any of the three liabilities, viz, to a prosecution for a crime, payment of penalty or recovery of forfeiture. This privilege does not entitle the person to refuse to go into the witness box to testify. It has nothing to do with his competence or compellability. This is what is known as the rule in Blunt v. Parklane Hotel Ltd (1942) 2 All ER 187 @ 189, judgment of Goddard J.

Again, on the authority of Boyle v Wiseman, a witness cannot refuse to go into box on the ground that he might incriminate himself, he can only clam this privilege after he has been sworn and the incriminating questions are asked him.

Also, it is the duty of the courts to ascertain whether the answers to the question will expose the witness or spouse of the witness to a criminal charge, forfeiture or penalty. If the question is one who will obviously call for an incriminating answer, the court will always rule in favour of the privilege against self incrimination. However, if the court is of the view that the answer will not incriminate the witness or the spouse, the court may decide to investigate the matter further in order to ascertain whether the answer to such questions will incriminate the witness or his or her spouse.

But, if the answer given by the witness has a remote possibility that the witness or spouse will be exposed to a criminal charge or reveal a minor offence or the offence that was committed a very long time ago, the court will refuse the privilege and ask the witness to answer the question. Anything the witness is forced to say after he had taken the privilege will be taken as involuntary and not according to his will and this will nullify the case on appeal.

Similarly, if the privilege reveals the penalty to be suffered only at customary law, the court will refuse the privilege and ask the witness to answer the question. Please note that an accused giving testimony cannot claim this privilege. Also, if it shows that the suffering is a civil suit, the court will not rule in favour of the privilege. Lastly, 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.

Admissions Made Without Prejudice

The law by virtue of section 196 of the Evidence Act 2011 is that a statement in any document marked "without prejudice" made in the course of negotiations for a settlement of a dispute out of court, shall not be given in evidence in any suit. The privilege under this heading thus arises only in civil cases.

These are admissions of fact made either orally or in a letter without prejudice to any subsequent or pending action and on the express or implied understanding that evidence of them should not be given at the trial of such actions. When the admissions are made under these circumstances, the court will not allow evidence of them to be given; they are thus privileged from disclosure and inadmissible. A good example of this kind of admissions is contract negation letters.

The reason for the principle is because: it is the policy of the law that dispute should be amicably settled if possible and it would be unwise to enter into negotiations if statements made during such negotiations were admissible in evidence at the trial in the event of the attempt to settle not being successful. This is the opinion of per Lush J in La Roche v. Armstrong (1922) 1 KB 485.

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