PRIVILEGE

Contents

1.0       Introduction

2.0       Objectives

3.0       Main Content

• Privilege
• State Privilege

4.0       Conclusion

5.0       Summary

6.0       Tutor-Marked Assignment

7.0       References/Further Readings

INTRODUCTION:

The duty of a court is to decide between the parties on the basis of the evidence that has been demonstrated, canvassed and argued in court. In order to secure a fair trial,  all relevant oral, real and documentary evidence in respect of the matter before it should be made available for consideration of the court without let or hindrance whatsoever. However, such an ideal situation is hardly attainable as a witness, though competent and compellable, may under certain circumstances, claim privilege from answering certain questions or from tendering certain documents. The justification is borne out of public  policy and to secure some important benefits such as protecting the society good and security. In this Unit, you shall learn about privilege in Law of Evidence.

OBJECTIVES

This unit will impart into the student a comprehensive understanding of the term ‘Privilege’ and its distinction from other relative terms. This unit will also consider the definitions of the terms like “Absolute or state privilege” and ‘’Private privilege’’

MAIN CONTENT

Definition of the Term ‘Privilege’

Black Law’s Dictionary defines ‘Privilege’  as  a  special  legal  right,  exemptions,  or  immunity granted to a person or class of persons, an exception to a duty. It is that right which is given by the law to a person and which allows him to refuse to testify about a particular matter or to withhold a particular document.

Privilege is of two types and these are: Absolute or State Privilege and Private privilege or Just privilege

• Private Privilege (or Privilege)

There are varieties of privileges. Some of them are listed as follows:

1. Privilege against self-incrimination Section 183, Evidence Act, 2011
2. Communication between spouses during marriage (i.e. marital privilege) Evidence Act Sections 182 (3), and 187
3. Privilege from answering questions, which tend to show that a spouse is guilty of adultery Evidence Act 2011, Section 186
4. Judicial communication. Evidence Act,2011, Section 188
5. Communication made without prejudice Section 196
6. Communication relating to the deeds and other documents
7. Other confidential communications, Evidence Act, 2011, Section 189, 191,192

• Professional Confidence – Section 195

Issues of professional confidence may arise in a client and legal adviser relationship. An oral or written communication between  a  client  and  his  or  her  legal  adviser  is privileged  and neither of them can be compelled to disclose it. It is immaterial that the client is or is  not a party or that the legal adviser is a barrister, solicitor, or clerk or intermediate agent of either.

There are conditions precedents to a valid claim of privilege, namely:

1. The legal adviser must have been consulted in his professional capacity
2. The communication must have been made during the existence of the client-legal adviser relationship.

• Such communication must be made for the purpose of obtaining or giving legal advice and assistance, although it need not relate to actual, pending or contemplated

1. The privilege belongs to the client and the legal adviser can only disclose upon his or her consent.

The communications made between a legal adviser and his clients or any person representing his client(s) are privileged provided the dominant purpose is related  to  pending or contemplated suit and are made not only after litigation is anticipated or commenced but also made with a view to such litigation. This extends to answers to inquiries by the party at the request or suggestion of the legal prosecution or without any request for the purpose of obtaining a legal advice or of enabling him to prosecute or defend an action or prepare a brief. Certainly a legal professional privilege is non-existent in relation to communications which protect or facilitate crime or fraud.

The object of the communication is connected with one of the following:

1. advice as to litigation – pending or contemplated
2. advice as to the questions to be given

• Advice as to information, that may lead to required evidence

1. An in-house legal practitioner’s advice to his employers
2. Items enclosed with or referred to in communications falling into the above categories in circumstances where the items came into existence in the process of giving or receiving legal advice, provided the original would have been privileged

In the case of CALORIFIC v GUEST (1898) Lindley, MR said:

The principle of the rule of privilege is designed to enable a legal advice to be obtained safely and sufficiently. It does not protect confidential communication made to priests, friends or servants. “Once a privilege, always a privilege” it does not end with the termination of the original client-legal adviser relations.

But see also the following explanation by Jessel, MR:

“The principle protecting confidential communication is of a very limited character. It does not protect all confidential communications, which a man must necessarily make in order to obtain advice, even when needed for the protection of his life, or of his honour or of his fortune. There are  many  communications  which,  though  absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. The communications made to a medical  man whose advice is sought by a patient with respect to the probable origin of the disease as to which he is consulted, and which necessarily must be  made,  in  order  to  enable the medical man to advise or prescribe for the patient are not protected”.  “See WHEELER v LE MARCHANT (1881).

Self-Assessment Exercise

How are professional confidences privileged?

• Title Deed

A party to a criminal proceeding may claim privilege for documents which relate to his or her Title or relate solely to his own case and does not prove or support the title of the other party.

• Marital Privilege

Spouses under the Marriage Act are privileged from:

1. Giving evidence of marital intercourse during any period
2. Disclosing the communication between spouses during marriage. The rule is inapplicable to nor protect:

(i).        Pre-marital communications

(ii)        Communications made after the dissolution of marriage by death or divorce of the spouses,

(iii). Communications made by spouse’s witness to her.

The privilege is not limited to communications of a confidential nature. Every witness may claim the privilege whether or not he or she is a party to the action. The privilege belongs to the spouse witness who is at liberty to waive and disclose it regardless of the witness of the other spouse. However, the communication can be proved by calling third party witness  who overheard it or by producing a privileged letter between the spouses which had been intercepted. A witness in any proceeding instituted in consequence of adultery may not be compelled to answer any question which tends to show that he is guilty of adultery.

• Incriminating Questions or other Confidential Communications

Generally, a witness cannot be compelled to answer any question or produce any or his or her spouse to a criminal charge, penalty or forfeiture.

The privilege belongs to a witness, not a co-defendant, who also may waive it. The privilege is exercised by the witness on oath, at the point the question is asked. The claim is not absolute, as the court needs to be satisfied that there is a reasonable ground to apprehend danger to the witness. If the court finds the ground of objection reasonable, the privilege subsists. Otherwise the witness must answer the question or face committal for contempt, should he or she decline to answer. The privilege does not extend to co- defendants.

An accused is a competent witness and may give evidence in his own defence. In the process, he is not privileged from answering questions put  to  him,  which  tend  to  implicate him in the crime with which he is charged.

Conversely, he is subject to statutory exceptions from answering questions tending to show that he is guilty of other offences.

Ii is not settled whether a spiritual leader can avoid disclosing confidential secrets on the ground that doing so would expose him or her to ecclesiastical penalties.

A journalist is not privileged against disclosing the name of his or her informant (AG. v MULHOLLAND AND FOSTER (1963) 2 QB 477).

Note also that a Magistrate or a Police Officer cannot be compelled to disclose the source of information as to the commission of an offence on ground of public policy.  Thus a witness,  if he is a third person cannot be asked questions as will disclose the informant; nor will he be asked if he himself is the informant. See Evidence Act, Section 183 and 189.

• Activity

Read the Freedom of Information Act, 2011.

To what extent ,if at all, does the Act affect the assertion that journalists lack privilege against disclosing their informants?

• Privilege against self-incrimination

A person who is arrested or detained has the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any  other  person  of  his  choice. He is protected from being compelled to give evidence at the trial.

Note the following 1999 Constitutional safeguards:

1. Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice (section 35(2).
2. In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure  its  independence  and  Sec 36 (1).

Read (i) Evidence Act Section 190, 191 and 192 (ii) The 1999 Constitution, Section 36 (1)

    Evidence as to affairs of State

“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 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: Section 190, Evidence Act, 2011.

The Evidence as to the affairs of State is otherwise known as State privilege and it refers to the power that the Court has to exclude evidence on the ground that the disclosure of information wound injure the general good. It is a rule of  law  that  requires  the  withholding of documents on the ground that it would be harmful to public interest to disclose it.

• Justification of the Rule

A State privilege is based on the public policy that a person should not be allowed to do anything at large. It may demand that a certain relevant document or matter be excluded on the ground that its admission would be contrary to public policy. This is especially the case where such admissibility is likely to affect the security of the State or the good administration of public affairs or justice.  The State Privilege cannot be waived:   It relates  to relevant facts which need not be proved by reason of public policy or State privilege and cannot be given in evidence.

When an original document is excluded on the ground of State privilege, a copy of such a document or a secondary oral communication or oral testimony of it is inadmissible in evidence - once a privilege, always a privilege.

Let us consider three classes of cases to explain how the principle of state privilege operates:

• Affairs of State – Section 190

Evidence pertaining to the affairs of state is excluded  from evidence  if  the  disclosure would be detrimental to the interest. The protection also encourages freedom of communication among officials and between officials and the public at large.

Examples of such important state of affairs are:

• The construction of a submarine
• The Report of a Court Martial to the Commander – in –Chief.
• The company’s balance sheet in the possession of the income tax authorities
• The Report of a Prison director or of the Police as to the mental state of a prisoner
• Written or oral communication among appointing bodies or authorities on the suitability of a candidate for magistracy or justice of the peace
  • Scope:

State privilege is not confined to documents although usually, it applies to it. It is not also confined to public documents. It protects also the following:

1. Documents in the possession of a government department or official
2. Private documents whose production could be prejudicial to the state

State Privilege does not extend to documents relating to the affairs of local authorities. It does apply to exclude oral evidence which, if given would jeopardize the interests of the community.

The Minister of the Government Department concerned may give consent to produce the documents in issue. He can object to its production also. He does so:

• On discovery
• In an objection before trail by affidavit, or
• At the trial

It is important that an official or State Counsel, in obedience to the subpoena, must have the document in Court at the trial.

• Objection

Claim of state privilege must be made by the minister himself, having seen, and considered the contents and satisfied himself that it ought not to be produced on grounds of public interest because, for example, disclosure would injure national defence or good diplomatic relations or because the practice of keeping the class of documents secret is necessary for the proper functioning of the public service.

The objection to the production if sustained by the court is final; and the judge would call for the production of the document.

Some judicial opinions have tried to draw a dichotomy between

• a particular document and
• a certain class of documentt

The protagonists also advocate that the Minister should, by affidavit specify:

• That a particular document should not be discussed
• The class to which the document belongs is with sufficient clarity to enable this judge to form his opinion

In SPIGELMANN v HOCKER (1933) it was held that the principle of state privilege did not apply to claims relating to certain classes of documents as opposed  to  a particular document or documents.

See also RE GROSVENOR HOTEL (NO 2) (1964). In this case, the Court of Appeal held that in relation to documents of a particular class, the courts in England had a residuary power to override  the  executives’  veto   where   the   privilege   is  unreasonably  claimed.   The House of Lord has endorsed this reasoning in the important case of CONWAY v RIMMER (1968) 1 ALL ER 878.

• Activity

Read the following cases:

• Duncan v Cammel Laurd & Co. Ltd. (1942) this case is civil but its principle applies to criminal
• Conway v Rimmer (1968)
• Maya (Jnr) & Sons Ltd. UAC of Nigeria Ltd (1971)
• Attorney-General of Western Nigeria v The African Press & Another (1965)

Also refresh your memory by reading over Evidence Act Section 190, 191 and 192 as well as the 1999 Constitution, section 36.

1. What did Duncan’s case decide and by which court and in what year? Does it apply in Nigeria?
2. What did Conway’s case decide? By which Court? What year? Does it apply in Nigeria?
3. Who does each of both cases say has the final decision as to whether or not a document is state privileged -the relevant state functionary or the Judge?
4. Which view does the Evidence Act support?
5. Do you see any conflict between section 36 (1) of the 1999 Constitution and Evidence Act, 2011 provision?

It would appear that the Evidence Act makes the state functionary the final arbiter in the matter of exclusion of evidence on the ground of state privilege. See the Constitution, 1999, Section 36(4) and the proviso in Evidence Act 2011 Section 190.

Maya’s case is of the view that it is still open to the court to consider whether  public  interest outweighs the accused’s right to fair hearing. The position of the law is probably, as stated in AG (WN) v The African Press & Anor where the Supreme Court said:

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 have prejudiced the accused in making his defence, the court is bound to say that the prosecution has not proved its case beyond reasonable doubt. In the course of argument we called the attention of the Director of Public Prosecutions to proviso (b) to section 22 (3) of the Constitution of the Federation, under which the court may take evidence in private if the Minister certifies that it would not be in the public interest for it to be publicly  disclosed.  Anyone  improperly disclosing such evidence subsequently would be  punishable  for contempt of court and we trust that whenever possible Ministers will adopt this middle course rather than that of excluding relevant evidence from  the consideration of the court. The Minister is made the judge of what the public  interest requires, but he must weigh one consideration against another, and he should be reminded that it is always contrary to one facet of the public interest if relevant evidence is excluded.

The relevance of evidence is for the court, not the Minister, to decide and where ad subpoena is applied for on frivolous grounds it may be set aside by the court on a motion brought for that purpose as was done in R v AGWUNA (1949) 12 WACA 456; the same applies to a subpoena which is bad for vagueness.

• Judicial Privilege: Compellability of Justices, etc or the persons before whom the proceedings is held

By Sections 188-189 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 Tertiary, 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 sitting (Section 188).

Restriction on disclosure as to source of information in respect of commission of offences:

No magistrate, police officer or any other public officer authorized 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 authorized 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. (Section 189, Evidence Act, 2011).

By this provision, 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 proceeding in proof of the matter stated in it (Evidence Act, 2011, Section 196).

Judge of a superior Court of record enjoys a state privilege not to give evidence as to matters arising before him in his judicial capacity. This privilege does not extend to matters of incidental nature, such as a riot in the Court.

A legal practitioner cannot be compelled to disclose matters stated by him in the course of conducting a case. Similarly an Arbitrator is protected from giving evidence of what took place before him. But he cannot be heard  to  claim  privilege  from  disclosure  of  the  reason for his award or the meaning intended to be given to it.

Similarly a witness is protected from disclosing the sources of information leading to the detection of a Crime except to prove the innocence of the accused.

• Statements in documents marked: “Without Prejudice” –section 196

Communications made “without prejudice” either in writing or orally are protected from subsequent disclosure, unless both parties are willing to dispense with this protection.

This is to discourage litigation and to encourage parties to settle matters amicably without recourse to litigation. It is also to encourage parties to shift grounds and avoid embarrassment, which would have ensued but for the protection. The immunity extends to admissions by words or conduct and to communications forming part of the same chain of communications made without prejudice.

Statement made “without prejudice” may be express. It may also be inferred, where not expressly made “without prejudice.” It all depends on the relationship of the parties, the circumstances in which the statement is made, the contents of the statements or other relevant facts.

Examples are statements made by estranged spouses to conciliators or a probation officer. But statements or acts that are without proper connections or which are not reasonably incidental to the negotiations are not protected.

• Self-Assessment

How valid is the rule: “Once privilege, always privilege”.

• Members of the National or State Houses of Assembly

This eminent class of people is immune from giving evidence in a Court of law as to what was said in the floor of the National or State House of Assembly.

The foundation of the rule is that the information cannot be disclosed without injury to the public interests and not that the documents are confidential or official, which alone is no reason for non-production. The general interest of the public  is paramount to the interest  of the plaintiff. (ASIATIC PETROLEUM CO LTD v ANGLO-PERSIAN OIL COMPANY LTD (1916)

1 KB 822 per Swinfer –Eady L.J)

• Sample Cases: At this juncture, let us review more cases
• DUNCAN v COMMELL LAIRD & COY LTD (1942) 1 ALL ER 587.

This action is one of negligence for damages arising from the construction of a submarine. Appellants asked for an order for the production of a submarine. The first Lord of the Admiralty deposed to an affidavit that such production would be contrary to the public interest. Upholding the objection, the Court said:

• That documents, otherwise relevant and liable to production, need not be produced, if owing to their actual interest requires that they should be withheld
• That an objection to the production of documents duly taken by the head of a government department should be treated by the court as conclusive

Viscount Simon LC put the matter plainly thus:

“The essential matter is that the decision to object should be taken by the minister, who is the political head of the department, and that he should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interests, they ought not to be produced, either because of their actual contents or because of the class of documents – e.g., departmental minutes – to which they belong. Instances may arise where it is not convenient or practicable for the political minister to act (e.g. he may be out of reach, or ill, or the department may be one where the effective head is a permanent official), and in such cases it would be reasonable for the objection to be taken, as it has often been taken in the past, by the permanent head.  If the question arises before trial, the objection  would  ordinarily  be taken by affidavit, and a good example is provided  by the affidavit of the First  Lord of the Admiralty in the present case. If the question arises on subpoena at the hearing, it is not uncommon in modern practice for the minister’s objection to be conveyed to the court, at any rate in the first instance, by an official of the department who produces a certificate which the minister has signed, stating what is necessary. I see no harm in the procedure, provided it is understood that this is only for convenience and that, if the court is not satisfied by this method, it can request the minister’s personal attendance.”

• : CONWAY v RIMMER (1968) AC 910. In this case, Lord Reid explained the rule further as follows:

It is universally recognized that there are two kinds of public interests which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of Justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private can be allowed to prevail over it.

CONCLUSION

A witness may claim privilege and be protected from answering certain questions or from tendering certain documents. A privilege relating to a document extends to its secondary evidence where it relates to the affairs of states, judge and magistrate. There is the controversy whether the view of the official or of the head of the Department (e.g. a Minister) that public interests would suffer from the disclosure in court is absolute or whether it can be heard in camera. SEE DUNCAN’S CASE (1942) AND CONWAY v RIMMER (1968). A witness  is  privileged  from answering incriminating questions (Boyle V Wiseman) A statement made without prejudice does not apply to collateral facts that may be discovered during “without prejudice” negotiation.

SUMMARY

Official and privileged communications exist among judges and magistrates as to their conduct in their courts and among jurors as to their conduct in the jury room. Privilege protects communications between legal practitioners and their clients, spouses, and among persons in fiduciary relationship. Documents relating to the affairs of state are, in the interest of the security and the welfare of state privileged (section 190-191), ASIATIC PETROLEUM CO LTD v ANGLO PERSIAN OIL CO LTD (1916), ALI v JONATHAN CAPE LTD

(1976).You may notice that a statement without prejudices is privileged only if it relates to negotiations towards the settlement of an issue.  A  client  (whether  a  party  or   not   cannot be compelled to disclose communications (oral or written) between him and his  legal advisor. Clients and patent agents or party and non-professional agents have limited privilege. Matrimonial Causes Act protects spouses against disclose of evidence of marital intercourse as well as communication between them during marriage.

No witness is compellable to answer questions tending to expose him or her, or his spouse to a criminal charge, penalty or forfeiture. No privilege extends  to communications between priest and penitent; doctor and patient, or a journalist against disclosing the name of his informant.

TUTOR MARKED ASSIGNMENT

1. Distinguish between state privilege and private privilege
2. What is the duty of the Court where evidence is objected to on the ground that its admission would be contrary to public interest?

FURTHER READINGS/REFERENCES

Afe, B (2001) Law and Practice in Nigeria

Nwadialo, F (1999) 2nd Ed. Modern Nigerian Law of Evidence, Lagos University Press, Lagos FGN – Evidence Act 2011.