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18 Jan

EVIDENCE 2.10 TESTIMONIAL PRIVILEDGE

TESTIMONIAL PRIVILEGE.

 

Is a right not to testify based on a claim of privilege-Sebastine Tar Hon.

He who asserts that he has testimonial privilege must prove… but he should first allow himself to be sworn in-Boyle V Wiseman.

Testimonial Privilege may be PRIVATE OR PUBLIC.

PRIVATE PRIVILEGE.

They include:

  1. Communication between Spouses: Section 182(3) and Section 187. Grants the privilege to spouses not to disclose communications made within them while in marrage[1]. Except with the consent of the spouse-Obayemi V Obayemi or where the spouse is being prosecuted for an offence specified in Section 182(1) EA 2011[2].
  2. Evidence by Spouse as to Adultery: in Section 186 already discussed earlier in this work.
  3. Judicial communications: are granted privilege from disclosure under Section 188 EA[3]. The privilege can be torpedoed by the special order of a High court or FHC.
  4. Information as to Commission of an Offence: Section 189 EA.

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. This is needed to protect the identity of the informer[4] and “prevent the source of information from drying up”-Nwarata V Egboka.

In Rogers V Secretary of State for the Home Department the court prevented the defendant from luring the police to disclose the source of their information. See also Alfred Crompton Amusement Machines Ltd V Commissioner of Customs[5] ; R V Hewitt. In R V Agar, police was tipped that the accused was arriving to deal in drugs. Once he arrived, he was arrested. Held that police were not obliged to disclose who the Tippie/informant was. However, in R V Baker, the court noted that it can order disclosure where doing so would be in the best interest of justice and genuine litigation. But this discretion should be judiciously exercised-R V Turner. See also R V Keane.

  1. Legal Professional Communications: Section 192[6] provides: No legal practitioner shall at any time be permitted, unless with his client’s express consent, to disclose[7] any communication[8] 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 contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this Section shall protect from disclosure — (a) any such communication made in furtherance of any illegal[9] purpose; or (b) any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment… (3) The obligation stated in this Section continues after the employment has ceased-Calcraft V Guest.

This privilege is fundamental and should not be infringed[10] The privilege ensures that clients feel safe and confident when seeking legal advice-Queen V Eguafor[11]. The privilege seeks to protect the clientWaugh V B.R.E and R V Derby Magistrates, ex parte B, R V Peterborough. Only the client can waive it-Abubakar V Chuks maybe by sending the document sought to be protected to the opponent (as was done in Caldbeck V Boon)[12]. The privilege extends to clerks and other agents of the client-Du Barre V Livette, NSITFMB V Adeyemo

  1. Doctor and Patient: There is no provision but the ethics of medical practitioners requires confidentiality-Boreham J in Hunter V Mann. So that the patient would be confident when disclosing his habit and activities to his doctor-Parry-Jones V The Law Society. See also Worral V Reich.
  2. Communication to Banker[13], Accountant[14] and Agents[15] may also be privileged.
  3. Priest and Worshipper/Penitents: There is NO privilege for communications made to priests/pastors. See He may be called to disclose-Normanshaw V Normanshaw, R V Griffin.
  4. Privilege against Self-Incrimination: The accused is protected against self-incrimination-Section 183 and 180 EA. Subject to the exceptions contained in Section 180[16]. He is to raise the privilege[17] and justify why it should be accorded to him-Khan V Khan. See also, R V Irvine, R V Coot. See generally, Section 36(11).
  5. Communications made “Without Prejudice.”: As Dr Ogunniran noted, “an offer or admission made with the understanding that any such offer or admission is made in the process of negotiation could not be given in evidence should such negotiation break down”. Section 196 provides; A statement in any document marked “without prejudice” made in the course of Statements in negotiation for a settlement of a dispute out of court, shall not be given in evidence… in civil proceedings by privies to the negotiation-Nwadike V Ibekwe. In Obeya V First Bank of Nigeria, the court noted that it is because these agreements are confidential being documents written during negotiations[18]. In Fawehinmi V NBA the court noted that this provision may still apply notwithstanding that the documents are not marked “without prejudice”. In Grayshot Enterprises Ltd V Minister of Agriculture, the court noted that such inadmissibility would clear the coast for the parties to freely negotiate a compromise in view of genuinely settling a dispute without being afraid that admissions made by them would be used against them later in court. There must be an end to litigation.

The parties may however agree to waive the privilege. See La Roche V Armstrong.

  1. Journalists: no provision but Section 39(1) and (3) (a) of the 1999 Constitution guarantees freedom of expression and provides for non-disclosure to be legally protected. This has been ensured by the enactment of the Freedom of Information Act No. 4 LFN 2011. See John V Express Newspapers Plc.

 

[1] Initially, this Section only applied to spouses of Monogamous/Statutory marriage-Faremilekun and Ors V The State. However, Section 258 has remedied this defect by extending it to Customary and Islamic law marriages-Okoro V State.

[2] Those offences relate to defilement of female.

[3] 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.

[4] R V Hennessey.

[5] the commissioners could not be compelled toreveal their source of information.

[6] Section 195 provides for the privilege of the client.

[7] Abubakar V Chuks to disclose means to make known to the public.

[8] Holden J in Horn V Rickard noted that the counsel is not allowed to divulge client’s secret information.

[9] O’Rourke V Darbishire, Barclays Bank Plc V Eustice, Bullivant V AG for Victoria.

[10] House of Lords in R V Special Commissioner of Income Tax. Same noted in Comptroller Nigerian Prisons Service V Adekanye (No. 1).

[11] Disclosure by counsel frowned upon.

[12] 7 ICLR 32. See also R V Littlechild where the client signed an agreement waiving this right.

[13] Tournier V National Provincial and Union Bank

[14] Martin V Martin

[15] Slade V Tucker.

[16] Discussed earlier in this work.

[17] Boyle V Wiseman.

[18] South Shropshire District Council V Amos.

Isochukwu

Quite eccentric really

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