Privilege is a rule of evidence that allows
the beneficiary of the privilege to refuse to disclose information or provide
evidence about a certain subject or to bar such evidence from being disclosed
or used in a judicial or other proceeding. This principle was judicially
defined in B v. Auckland v. Society,[1]
as a right to resist the compulsory disclosure of information. Privilege acts
to protect a witness from answering questions in evidence, and/or entitles a
party to refuse to produce documents for inspection, during the course of legal
proceedings. This doctrine is thus, not just a rule of evidence, but is also a
substantive legal right. It follows that it would amount to a breach of this
fundamental legal right, for a court to draw any adverse inference, from the
making of a valid claim to privilege.[2]

communications is protected in various forms and in varying degrees, in
different jurisdictions of the world. Part 3.10 of the Australian Evidence Act
2011,[3] deals with privileges and by Sections 117-128
thereof, the following privileges have been identified; (a) Client legal
privilege, (b) Journalist privilege, (c) Religious confession privilege and (d)
Privilege against self-incrimination.

Nigeria, Sections 164 – 176 0f the Evidence Act of Nigeria 2011[4] and Section 16 of the Freedom of Information Act,
L.F.N 2011,[5] provides for privileged communication. A combined
reading of those sections, reveals that the following types of privilege exist
in Nigeria; (a) Spousal privilege. [6](b) Judicial privilege,[7] (c) Legal profession privilege,[8] (d) Privilege against self-incrimination,[9] (e) Health worker – patient privilege ,[10](f) Journalist privilege,[11] and (g)Without prejudice privilege.[12]

some jurisdictions offer legal protection for communications between Priest and
penitent, Nigeria offers no such protection. Such protection is only offered by
the rules of the profession, where such rules exist.

the rest of this paper, I focus on the three most prominent instances of
privilege, as these instances cut across most jurisdictions of the world.

Legal Profession Privilege.

professional privilege seeks to protect communication between a client and his
lawyer. It is based on the need to obtain legal advice, freely, safely and
sufficiently. The rationale for the rule of legal professional privilege, was
given in Anderson v. Bank of British Columbia[13],
in the following words; “….a man, in order to prosecute his rights or defend
himself,…should have resource to the assistance of professional lawyers….he
should be able to place unrestricted and unbound confidence in the professional
agent, and the communication he so makes, should be kept secret, unless with
his consent, that he should be enabled to properly conduct his litigation.”[14]

privilege belongs to the party and not the lawyer, the right of privilege is
most often asserted by the lawyer.[15]
This privilege is also protected by Rule 19 (1) and (2) of the Rules of
Professional Conduct for Legal Practitioners, 2007, in Nigeria (“R.P.C

Duration of Legal Profession Privilege: The rule is
generally, once a privilege, always a privilege and once privilege is
established, the mouth of the lawyer is ‘shut forever’.[17]
This position was reaffirmed in Nationwide Building Society v. Various
Blackburn J. took a differing view in where he held that the right to privilege
is absolute and the lawyer’s mouth is indeed, ‘shut forever’. In the earlier
case of R. v. Derby Magistrates Court Ex P. B.,[19] Lord Nicholls said obiter, that in circumstances
where the client has no interest in asserting the right to privilege and the
enforcement of the right would be seriously prejudicial to another, in
defending a criminal charge or in some other way, he cannot expect the law to
protect the right. I agree more with the Lord Nicholls view, as same seems to
ensure that the interest of justice is better served, which is the whole
essence of the legal system. It is important to note that the duration of this
form of privilege, continues even after employment has ceased.[20]

Categories of Legal
Professional Privilege:
There are basically two categories; (a) Legal
advice privilege: protects communication between a client and his lawyer, which
are part of the process of the giving and getting of legal advice, without the
existence or contemplation of legal proceedings; (b) Litigation privilege only
covers communications made when there a pending litigation or a reasonable
expectation of one. This form of privilege protects information which comes
into existence, for the purpose of gathering evidence for legal proceedings and
usually, includes communications made to 3rd parties, for this purpose.

Instances where information
amounting to Legal Profession Privilege may be admitted.

Rule 19 (3) of the R.P.C Nigeria, a lawyer may reveal confidences or secrets
with the consent of the client or clients affected, but only after a full
disclosure to them, in the following instances;

or secrets when permitted under the rules of the R.P.C Nigeria, or required law
or a Court order;

the privileged information reveals an intention of his client to commit a crime
and the information necessary to prevent the crime;

necessary to establish or collect his fee or privileged communication necessary
to defend himself or his employees or associates against an accusation of
wrongful conduct, and

a court finds that the interest of the public in having information disclosed
is greater and far more vital than protecting the attorney-client communication.[21]

is the general position in nearly all jurisdictions worldwide.

“Without Prejudice” Privilege.

refers to written or oral communications, which are made for the purpose of a
genuine attempt to settle a dispute, without having to recourse to litigation.
Such communications are not admissible in evidence.[22]

Cutts v. Head,[23]
Oliver C.J said the rationale for this rule, is to encourage disputing parties,
to as much as possible, settle their disputes, without recourse to litigation,
and in doing so, parties should not be discouraged by the knowledge that what
is said in the course of such negotiations, may be used to their prejudice, in
the course of legal proceedings.[24]

Information disclosed without
prejudice may be given in evidence in the following circumstances:

the court needs to determine whether the parties reached a

determine whether an agreement apparently concluded by the parties, should be
set aside on the grounds of misrepresentation, fraud or undue influence.

establish a clear statement which is made by one party to the negotiations, on
which the other party to the negotiations is to act and does infact act, may be
admissible, as giving rise to estoppel.

explain delay or acquiescence.

prevent the inappropriate use of privilege. Such as where a party cites the
negotiations as reason for the delay, the other party may produce the
communications to show they do not justify the delay.

the word, “without prejudice save as to cost”, is used, the communications may
be admitted on questions as to cost.[25]

addition to the above, communications made ‘without prejudice’ will be admitted
where the dispute has been resolved or the parties agree to waive privilege.

Privilege against

person is bound to answer any question in legal proceedings, if the answer
thereto, may expose him to any criminal charge or penalty. It also encompasses
the accused person’s right to silence. However, where the accused in a criminal
trial chooses to give evidence, he may be asked any question in relation, in
cress examination, irrespective of the fact that such questions tend to
incriminate him with respect to the offence charged. He may not however, be
asked questions tending to show he committed other offences, save for limited
The privilege allows a person to refuse to incriminate himself or his spouse.[27]

this form of privilege is usually claimed after the holder has been sworn as a
witness, he cannot refuse to attend court, for fear of incriminating himself. [28]

is not enough for the witness to simply assert that answering the question
incriminates him. The court must be satisfied that there is reasonable ground
to apprehend such danger to him, from his being compelled to answer the

Transfer of the Right of

unusual, where contractual rights transferred or assigned, includes a claim to
privilege, the claim may also be asserted and enjoyed, by the assignee or


is my opinion that despite the exceptions to the rule on privileged
communication, the principle offers sufficient protection for those it seeks to
protect. As it concerns Legal Profession Privilege for instance, The R.P.C Nig.
makes it professional misconduct, for a legal practitioner to breach this
duty, and entitles the client to sue such a legal practitioner, and/report
the legal practitioner to the relevant body, for appropriate disciplinary
measures to be taken. Even though exceptions to the admissibility of privileged
communications exist, they are limited in scope and applied very strictly. It
is a right treated with highest regards and the need to waive it must outweigh
the need to protect the right, unless where the holder expressly waives it.

[1] [2003] 2 A.C.
736, para. 67,

[2] See Wentworth v.
Lloyd [1864] 10 H.L.C. 589.

[3] (hereinafter
referred to as the E.A Aust.)

[4] (hereinafter
referred to as the E..A Nig.)

[5] (subsequently
referred to as the F.I.A Nig.)

[6] S. 164, E.A.

[7] S. 165, E.A.

[8] .S. 170-173 E.A.
Nig, S.16 (a) F.I.A. Nig.

[9] S. 176 E.A. Nig.

[10] S.16 (b) F.I.A.

[11] S. 16 (c),
F.I.A Nig.

[12] with respect to
disclosures made in the course of negotiations to settle a dispute. S. 28 E.A.

[13] [1875-1876]
L.R. 2 Ch. D. 644 @ 649

  Horn v. Richard (1963)2 All N.L.R. 40 @ 41 and Three rivers D.C v.
Bank of England (No. 5) [2003] Q. B. 1556, para. 39.

[15] (except in
cases where the claim of privilege is against self-incrimination).

[16] S.126 (b) E.A.
Aust. (It must be noted that while privilege protects documents from
inspection, it does not necessarily protect them from disclosure).

[17]  The Agis
Blaze [1986] 1 Llyods Rep. 203 CA.

[18] [1999]
P.N.L.R., 52 @ 69

[19] [1996] 1 A.C.,

[20]   S.
170 (3) of the E.A. Nig..

[21]  S. 25
(1)(c) F.I.A Nig..

[22] GPI Leisure
Corporation v. Yuill [1997] 42 N.S.W.L.R., 225.

[23]  [1984]
Ch. 290 @ 306

[24] See also, the
Nigerian case of Chief  Oredin v. I.P.H. El Khalil & Ors. [1978] 2
OY.S.H,C. 325.

[25] See Unilever v.
Proctor & Gamble 28 [2001] 1. All E.R., 783, per Robert Walker L.J.

[26] Documentary
Charles Hollander Q.C. Sweet & Maxwell, (9th edition),
para. 17-01. See also, Section   36 of the Constitution of Nigeria
1999 (as amended)

[27] See Blunt v.
Park Lane Hotel Limited [1942] 2 All E.R. 187 @ 189.

[28] See Boyle v.
Wiseman [1855] 10 Exch. 647. published by Sibon Books Ltd,

[29] See R. v. Coote
[1873], L.R. 4 P.C. 599. See also,
Law & Practice of Evidence
in Nigeria
, by Afe Babalola, 2001 (ch 9 p. 173).

Zeniath Abiri

Litigator, Property, Probate Consultant and
Human Rights Activist.

Source: LinkedIn 

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