Introduction: State Privilege
- Affairs of state: Affairs of states relating to unpublished official records, official communications made by public officers and matters, the disclosure of which will be injurious to public interest are privilege. See S. 190, 191 and 243 of Evidence Act.
- Judicial Officers: Section 188 of the Evidence Act 2011, no justice can be compelled to answer any question as to his own conduct in court or as to anything which came to his knowledge in court while sitting in his capacity as a judge. This privilege does not however extend to questions relating to other matters which occurred in their presence while acting as such a judge or magistrate. See the case of R V. Tharnet (Earl)27 How St. Tr. 845.
- Information as to the commission of offence: Section 189 of the Evidence Act, this section bares any attempt to compel a magistrate or police officer or any other public officer authorized to investigate or prosecute offences under any written law, to say were he got any information as to the commission of any offence, and no officer employed in or about the business of any branch of the public revenue shall be compelled to say were he got any information as to the commission of any offence against the public revenue.
See also:-Official and Privilege Information; Presumption; Facts Judicially Noticed; Sources of Nigeria Law of Evidence; Scope of the Law of Evidence; Mischief Rule; Golden Rule; Literal Rule; Statutory Interpretation;
Private Privilege – State Privilege
- Professional communication with legal practitioners S. 182 of the Evidence Act, by this section a legal practitioner is not permitted to disclose any communication made to him in the cause and for the purpose of his employment. Exceptions to professional communication with legal practitioners Section 192(1) a&b
- Any communication made in the circumstances stated above but in furtherance of any illegal purpose.
- Any fact observed by any legal practitioner in the cause of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.
2. Privilege Against Self incrimination S. 183: by this section no witness is bound to answer any question if his answer to such question will in the opinion of the court have a tendency of exposing the witness or the witness in any criminal charge or to any penalty for forfeiture which the judge regard as reasonably likely to be preferred or sued for.
Exceptions to self incrimination
- By Section 183(a) a person charged with an offence and being a witness pursuant to S. 180 may be asked and is band to answer any question in cross-examination, notwithstanding that it will tend to incriminate him as to the offence charged and not as to other offences for which he is not standing trial. N/B it could be done during cross-examination.
- By S. 183(b) no witness is excused from answering any question only because the answer may establish or tend to establish that he owes a debt or otherwise liable to any suit either at the instance of state or any person.
- By S. 183(c) there is no privilege for a witness who is given an evidence under section 49 of the Criminal procedure Act in an inquiry directed by the Attorney- General.
3. Statement made without prejudice: occasionally before an action is instituted or in the cause of a pending litigation, the parties may attend settlement out of the court negotiation towards settlement may be oral or in writing or partly written in the cause of negotiation admissions which a material to the point in dispute may be made by either or both parties if the efforts at settlement fails, evidence of the admission made, if admitted in court may be very damaging to the party who made the admission.
For this reason, such admission are usually made without “prejudice” to any subsequent or pending action and on the understanding express or implied, that evidence of them should not be given at the trial of such action.
So evidence of admissions made in this circumstance because of their prejudious nature will not be allowed to be given in court. By S. 196 “ a statement in any document made without any prejudice made in the cause of negotiation for a settlement of dispute out of court shall not be given as an evidence in any civil proceedings improve of the matters stated in it. In the case of UBA Ltd V. IAS Co. Ltd, the court of appeal gave a rationale of excluding admission made without prejudice.
It said that the main purpose is to enable parties negotiate fully and sincerely without being hindered by the notion that the admissions made in the course of negotiations may be used latter against them.
It is to remove inhibition from frank, free and full negotiations for the settlement of the dispute. In Jades Simi V. Egbe, the court of appeal gave the conditions which must be satisfied before a statement will be excluded on privilege as follows:
- The piece of evidence concerned must relate to an
admission by the person against whom the evidence is to be given.
- The admission must have been made upon any express condition that evidence of it is not given.
- The admission must have been made in the circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. Although a letter may not be mark without prejudice it may have that character. Conversely, merely heading a document without prejudice will not automatically make it prejudice. See the case of Societe Commercial De L’guest Africans V. Olusoga and another; Section 196
- Privilege Attaching to Title Deed and other Documents by S. 184: A witness who is not a party to a suit is not compellable to produce his title deed to any property or any document by virtue of which he holds any property on pledge or mortgage. Similarly, he cannot be compelled to produce any document, the production of which may incriminate him. See also S. 185.
- Matrimonial Communication: By section 187 of the Evidence Act, communication between husband and wife made during the currency or subsistence of the marriage are privilege or after the dissolution is privilege.
- If the other party waives it
- If the parties are suing each other
- If any of the parties are standing trial for any of the offences in S. 182(1)
6. Doctor and Patient, Priest and Penitent, and Journalist and Informant, this privilege is provided for, not on legal ground but on ethical ground. See the case of Attorney-General V. Foster (1963)2 Q.B. 477
State Privilege. State Privilege. State Privilege