The Concept of Privilege in Evidence

While the court has a duty to decide between the parties on the basis of the evidence tendered, the duty remains only ideal and not totally attainable. This is because certain witnesses, 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 protecting the society's good. The 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 allows an individual to refuse to testify about a particular matter or to withhold a particular document. Generally, there are two kinds of Privilege:

Private Privilege

This includes: 

• Privilege against self-incrimination (S183, Evidence Act, 2011): 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 (Boyle V Wiseman). The privilege belongs to a witness, not a co-defendant. It is exercised by the witness on oath, at the point the question is asked.   The claim is not absolute, as long as there is a reasonable ground, but if the court finds the ground of objection reasonable, the privilege subsists. Otherwise the witness must answer the question or face committal for contempt if he declines to answer. Also, 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 but 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), Freedom of Information Act, 2011.
  • 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. - Evidence Act, S183 and 189.
    

  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. The 1999 Constitutional safeguards:
  

  • 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 (S35(2).
  • 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 impartiality - S36 (1). - Evidence Act S190, 191 and 192
    

• Communication between spouses during marriage/Marital Privilege (Evidence Act S182 (3), and 187): Spouses under the Marriage Act are privileged from:
  • Giving evidence of marital intercourse during any period.
  • Disclosing the communication between spouses during marriage. The rule is inapplicable to nor protect: 
  • Pre-marital communications 
  • Communications made after the dissolution of marriage by death or divorce of the spouses
  • 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.

• Privilege from answering questions, which shows a spouse is guilty of adultery - Evidence Act 2011, S186. 
• Judicial communication - S188, Evidence Act, 2011
  
• Communication made without prejudice Section 196 
• Communication relating to the deeds and other documents (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.
• Other confidential communications, Evidence Act, 2011, Section 189, 191, 192.  
• Professional Confidence (S195): If issues of professional confidence arise in a client and legal adviser relationship, an oral or written communication between both parties is privileged and no party can be compelled to disclose it. The communication is privileged as long as: 

• The legal adviser is consulted in his professional capacity
• The communication is during the existence of the client-legal adviser relationship.
• Such communication is for the purpose of obtaining or giving legal advice and assistance, although  it  may not relate to actual, pending or contemplated suit.
• The privilege belongs to the client and the legal adviser can only disclose upon his or her consent. 
  

Legal professional privilege is absent in relation to communications which protect or facilitate crime or fraud. Summarily, the object of the communication is connected with:

• advice as to litigation – pending or contemplated
• advice as to the questions to be given 
• Advice as to information, that may lead to required evidence. 
• An in-house legal practitioner’s advice to his employers. 
• 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. - CALORIFIC v GUEST (1898) - “Once a privilege, always a privilege” it does not end with the termination of the original client-legal adviser relations. 

 

State Privilege or Evidence as to affairs of State (S190, Evidence Act)

State privilege is the power of the Court to exclude or withhold documents/evidence on the ground that the disclosure of information would harm public good and interest. It 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 in cases where such admissibility may affect the security or administration of the State, public affairs or justice. Also, State Privilege cannot be waived because 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.

“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 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.
 

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.
  

State privilege is not confined to documents (private and public). It protects documents in the possession of the government and private documents whose production could be prejudicial to the state. State Privilege does not extend to documents relating to the affairs of local authorities but it applies to exclude oral evidence which, if given would hurt communal interest. 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) a particular document and
(b) a certain class of documents

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.
 

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

The Evidence Act makes the state functionary the final arbiter in the matter of exclusion of evidence on the ground of state privilege.- S36(4) CFRN, 1999 and S190, Evidence Act 2011.
 

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: By S188-189 Evidence Act, 2011, 
• No judge (except upon the special order of the High Court of the State, Federal Capital Tertiary, Abuja or Federal High court) shall  be compelled to answer any questions as to his own conduct in court (S188)
  
• No magistrate, police or 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 (S189, 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  proceeding  in  proof  of  the  matter  stated  in  it unless both parties are willing to dispense with this protection. (Evidence Act, 2011, S 196). This encourages parties to settle matters amicably without recourse to litigation. 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.
  
• 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. 
• Legal practitioners cannot be compelled to disclose matters 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. 
• 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. 

• Members of the National or State Houses of Assembly: Members of the house are 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. This is because the information cannot be disclosed without injury to the public interests.

Cases

• Duncan v. Commel Laird & Coy Ltd (1942) 1 ALL ER 587: In this action of negligence for damages arising from the construction of a submarine, the appellants requested an order to produce 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 (VIscount SImmon LC) 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.

• Conway v. Rimmer (1968) AC 910. In this case, Lord Reid explained 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 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.