15 Jan




Lord Reid in Conway V Rimmer noted that this privilege is weighed between the need to do justice against the need to protect public interest.

Section 190 provides that unpublished official records (or evidence contained therein) relating to the affairs of state should not be produced in court except as directed by the president or governor of the concerned state or the direction of the head of ministry/department concerned[1]. Section 191 provides that no public officer can be compelled to disclose communications made to him in official confidence.

Therefore upon being called to present such evidence, the Public officer can object[2] Section 243 EA 2011. Such objection should be by either affidavit (where before trial) or certificate produced by the public officer (where during trial)-Section 243(2). Afterwhich the court exercises its discretion and can inspect the document so as to determining whether the objection should be sustained or overruled-Section 243(3). Asiatic Petroleum Ltd V Anglo Persian Oil Company Limited

Disclosures to public officer in confidence[3], informant on terrorist activities[4], information on criminal activities[5] military operations[6] and formations[7], intelligence security reports[8], certain correspondence between government departments[9], Classified Government documents[10] and so on have been held to be privileged materials. See also Section 39 EFCC Act 2009 as Amended. NDLEA Act which contains certain similar privilege provisions.

Provided that such examination of the document be done in private-Section 190 of the EA 2011 e.g. judge alone in his chambers. Section 36(4) Of the 1999 Constitution.


[1] The HOD’s direction is subject to the direction of the Governor of concerned state or President.

[2] Initially, Section 220 OEA provided that the objection of the Minister or public officer concerned shall be conclusive and the court should not inspect the evidence. This was also followed in Duncan V Cammel Laird Co Ltd which was followed in the Nigerian case of Johnson V Sarkins. Although this position later reversed in Conway V Rimmer where it was noted that courts have inherent power to inspect documents. Conway’s case was followed by the Nigerian Court in Queen V The Administrator of Western Nigeria ex parte Bamgbelu. Subsequently, the Nigerian courts then used Section 36 of the 1999 Constitution to evade the hardship of Section 220 OEA. Thereby requiring that in the interest of fair hearing, they can examine the document to determine whether it should be admitted. This was done in Apampa V Balogun (to produce file of a local government relating to the appointment of chiefs and minutes of certain meetings). African Press Ltd V AG Western Nigeria. Rauf Aregbesola and Ors V Olagunsoye Oyinola  and Others where the “Final Security Report on Gubernatorial and House of Assembly Election in Osun State” was ordered to be produced for inspection notwithstanding that it was marked “secret” because it contained certain information necessary to do justice to the case. (relying on Section 36 of the 1999 Constitution). In the English case of R V Shyler, the House of Lords noted that democratic government means government of the people by the people and for the people. But there can be no government by the people if they are ignorant of the issues to be resolved. Therefore government should not hide things from us.

[3] Moruno V Benson 1966 NMLR 66.

[4] Fox V UK 1991 13 EHRR 157

[5] R V Smith 2000 All ER. Morrow V DPP.

[6] Asiatic Petroleum Ltd V Anglo-Persian Co Ltd.

[7] Duncan V Cammel Laird and Co Ltd.

[8] Balfour V Foreign and Commonwealth Office

[9] Re Joseph. Huges V Vargas. M. Isaacs and Sons Ltd V Cook.

[10] Johnson V Sarkis. Queen V The Administrator of Western Nigeria.


Quite eccentric really

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