NAME: ORIKA IFEOMA F.

MATRIC NO: 214457

COURSE: LPU 402: LAW OF EVIDENCE II

LECTURER-IN-CHARGE: DR. O. GBADEGESIN

ASSIGNMENT QUESTION

As a general rule, every person is a competent witness and may be compelled to give evidence in
court. However, a witness may decline to answer questions put to him/her on the grounds of
privilege. Enumerate the circumstances in which a witness may claim privilege from answering
certain questions. Support your answer with statutory and recent judicial authorities.
I. Introduction
A privileged communication is a private statement or information that must be kept confidential
by the recipient for the benefit of the communicator1. It refers to communications within certain
relationships that are protected from compelled disclosure in court proceedings. The rationale
behind this privilege is that society values the privacy or purpose of certain relationships, and
confidentiality is necessary to foster open and honest communication within these relationships 2.

Witness testimony is a crucial aspect of legal proceedings, as it provides courts with relevant
information and evidence to reach a just decision. However, the law also recognizes that certain
types of communications should be protected from disclosure in court to preserve the sanctity of
certain relationships and encourage open communication within those relationships.

Statutory Provisions on Privileged Communications

The Evidence Act 2011 is the primary statutory authority that governs privileged
communications in court proceedings. The relevant sections of the Act are:

1. Sections 182(3) and 187 - Husband-Wife Privilege

These sections protect communications made between spouses during their marriage from being
disclosed in court without the consent of the other spouse or their representative3. It is based on
the premise of promoting open and honest communication within the marital relationship.4
However, this privilege does not apply in cases between married persons or where one spouse is
prosecuted for specific offenses listed in Section 182(1)5.

In the case of Rumping v. DPP (1964) AC 814, it was held that if a communication between
spouses is intercepted by a third party, that third party can be compelled to disclose the
communication6. In the case of Aihunyo v. State (2019) LPELR-46850 (CA), the Court of
Appeal upheld the marital privilege and held that a wife could not be compelled to testify against
1 "Privileged Communication," Legal Information Institute, accessed March 17, 2024,
https://www.law.cornell.edu/wex/privileged_communication.
2 Wolfle v. United States, 291 U.S. 7 (1934).6
3 Evidence Act 2011, Sections 182(3) and 187.
4 Aihunyo v. State (2019) LPELR-46850 (CA).
5 Ibid., Section 182(1).
6 Rumping v. DPP (1964) AC 814.
her husband in a criminal trial. However, in Balogun v. Balogun (2017) LPELR-42139 (CA), the
court ruled that the privilege does not apply in matrimonial suits between spouses.

2. Section 188 - Judicial Privilege

This section grants privilege to Judges, Justices, Grand Khadis, and the President of the Court of
Appeal, preventing them from being compelled to answer questions about their conduct in court
regarding any pending or handled matter7. It aims to maintain the integrity and independence of
the judicial process. While the protection is absolute for higher court judges, magistrates and
other presiding officers can be compelled to disclose information by an order from the High
Court.

In the case of Okagbue v. State (2022) LPELR-56995 (CA), the Court of Appeal upheld the
judicial privilege and held that a judge could not be compelled to testify about a case they
presided over8.

3. Section 192(1) - Attorney-Client Privilege

Legal practitioners are prohibited from disclosing any communication made to them in the
course of and for the purpose of their employment, subject to certain exceptions9. This privilege
belongs to the client and can only be waived by the client, as established in cases such as Horn v.
Richard10. It promotes open and honest communication between attorneys and clients, allowing
for effective legal representation

In the case of Abdulrahman v. Ikotun11, the Court of Appeal emphasized the importance of the
attorney-client privilege and held that a lawyer could not be compelled to disclose confidential
communications with their client12. However, in Musa v. FRN13, the court ruled that the privilege
does not apply when communications are made in furtherance of an illegal purpose.

7 Evidence Act 2011, Section 188.

8 Okagbue v. State (2022) LPELR-56995 (CA).
9 Evidence Act 2011, Section 192(1).
10 (1963) NNLR 67
11 (2020) LPELR-52784 (CA)
12 Musa v. FRN (2019) LPELR-48296 (CA).
13 (2019) LPELR-48296 (CA)
4. Sections 184 and 185 - Document Production Privilege
Section 184 states that a witness who is not a party to a suit cannot be compelled to produce their
title deeds or any document that might incriminate them, unless they have waived this privilege
in writing. Section 185 extends this privilege to documents in the possession of a person other
than the owner, if the owner would be entitled to refuse production14.

These provisions protect witnesses from being compelled to produce documents that could
incriminate them or reveal their ownership of property. It also extends this privilege to
documents in the possession of a third party if the owner would be entitled to refuse production.

In the case of Akaeze v. FRN15, the Court of Appeal upheld the document production privilege
and ruled that the appellant could not be compelled to produce potentially incriminating
documents.

5. Section 183 - Privilege against Self-Incrimination

This section protects witnesses from being compelled to answer questions that might incriminate
themselves, subject to certain exceptions16. It is based on the principle of protecting an
individual's right against self-incrimination17. In the case of Adebayo v. FRN18, the Court of
Appeal recognized the privilege against self-incrimination and held that the appellant could not
be compelled to answer questions that might incriminate them19.

6. Section 190 - Unpublished Official Records Privilege

This section prohibits the production of any unpublished official records relating to state affairs
and disallows any person from giving evidence on such matters without permission from the
head of the concerned department. The case of Asiatic Petroleum Limited v. Anglo-Persian Oil

14 Ibid., Section 185.

15 (2021) LPELR-54871 (CA)
16 Evidence Act 2011, Section 183.
17 "Privilege Against Self-Incrimination," Legal Information Institute, Cornell Law School, accessed March 17, 2024,
https://www.law.cornell.edu/wex/privilege_against_self-incrimination
18 (2020) LPELR-51956 (CA)
19 Adebayo v. FRN (2020) LPELR-51956 (CA)
Co Ltd 20 highlighted that the main reason for this privilege is to prevent potential consequences
of disclosure to the state.

In the case of Ayeni v. FRN21, the Court of Appeal upheld the unpublished official records
privilege and ruled that the appellant could not compel the production of certain confidential
government documents.

7. Section 191 - Official Communication Privilege

This section states that no public officer shall be compelled to disclose communications made to
them in official confidence when they consider that public interest would suffer by the
disclosure. This privilege protects sensitive official communications and promotes open and
honest communication within government agencies22.

In the case of Okonkwo v. FRN23, the Court of Appeal recognized the official communication
privilege and held that a public officer could not be compelled to disclose confidential
communications made in official confidence.

Conclusion
The law recognizes several circumstances where witnesses can claim privilege and refuse to
answer questions or produce documents in court proceedings. However, these privileges must be
balanced against the need for effective fact-finding and the administration of justice in legal
proceedings. Courts must carefully weigh the competing interests and ensure that privileges are
not abused or used to obstruct the truth-seeking process. As the law continues to evolve, it is
essential for courts to provide clear and well-reasoned decisions that address emerging issues
related to privileged communications, ensuring that the balance between protected relationships
and the pursuit of justice is maintained.

20(1916) 1 KB 822
21 (2019) LPELR-47559 (CA)
22 Evidence Act 2011, Section 191.
23 (2018) LPELR-44371 (CA)