Official and Privileged Communications in Nigeria: State Secrets, Legal Privilege and Fair Hearing

In 2019, a federal minister was being investigated for fraud. The prosecution applied to compel the Director-General of the State Security Service to testify about communications made in the course of a national security investigation. The attorney-general objected, citing the public interest in maintaining the confidentiality of state security operations. The court had to decide: does the state’s interest in secrecy outweigh the accused’s right to have all relevant evidence placed before the court?

This is the tension at the heart of official and privileged communications in Nigerian evidence law. On one side sits the general principle that all relevant evidence should be placed before the court in the interests of truth and justice. On the other side sit specific relationships and public interests that the law protects from compelled disclosure. Neither side is absolute. The result is a set of rules that requires courts to balance competing interests case by case, and that involves some of the most complex and least settled areas of Nigerian evidence law.

This article explains the types of privilege recognised under the Evidence Act 2011, how each operates, and the constitutional dimensions that cut through all of them.

A preliminary note on section numbers. The privilege provisions of the Evidence Act 2011 run from section 183 to section 196, with the procedural mechanism for official privilege claims in section 243. Students who use lecture materials based on the repealed Evidence Act will find different section numbers. All references in this article are to the 2011 Act.

The Basis of Privilege

Privilege in the law of evidence is the right to withhold evidence that would otherwise be relevant and admissible. It is an exception to the general principle that all relevant evidence must be disclosed.

The justifications for privilege vary by type. Some privileges protect public interests, like state security and the administration of government. Some protect professional relationships built on trust and confidentiality, like the relationship between a legal practitioner and a client. Some protect personal relationships and constitutional rights.

The effect of privilege is that the privileged material cannot be compelled to be produced or testified about in court, even if it is relevant to the proceedings. A court that admits privileged material has made a legal error. A conviction based substantially on improperly admitted privileged material is vulnerable on appeal.

Official Communications: Public Interest Immunity

Sections 190, 191, and 243 of the Evidence Act 2011 govern official communications, which are also referred to as state privilege or public interest immunity.

Section 190 deals with unpublished official records relating to affairs of state. Subject to any direction of the President (or Governor where the records are in state custody), no one shall be permitted to produce any unpublished official records relating to affairs of state, or to give any evidence derived from such records, except with the permission of the officer at the head of the relevant Ministry, Department, or Agency. That officer gives or withholds permission as they think fit.

Section 191 deals with official communications more broadly. No public officer shall be compelled to disclose any communication made to them in official confidence when they consider that the public interest would suffer by the disclosure.

Section 243 provides the procedural mechanism for handling privilege claims. Where a privilege objection is raised, the head of the Ministry or Department concerned shall, on the order of the court, produce the official record to the judge alone in chambers. After careful consideration of the document in private, the judge decides whether it should be received as evidence in the proceedings.

The practical procedure is therefore: the public officer or head of department objects, either by affidavit (before trial) or by certificate (during trial). The court then exercises its discretion and may inspect the document in chambers to determine whether the objection should be sustained or overruled.

The evolution from absolute to qualified privilege. The old Evidence Act followed the approach in Duncan v Cammell Laird,¹ where the House of Lords held that a ministerial certificate claiming privilege was conclusive and the court could not look behind it. In Nigeria this approach was followed in Johnson v Sarkins where the court held that the minister’s objection was conclusive without judicial scrutiny. This approach was heavily criticised as inconsistent with the right to fair hearing.

The English position was reversed by Conway v Rimmer,² where the House of Lords held that courts have the power to override a ministerial claim of privilege and inspect documents in camera to determine whether the claim is justified. The court is not bound by the executive’s assessment. Nigerian courts and the drafters of the 2011 Act moved in the same direction. The current section 190 proviso and section 243 expressly empower the court to inspect documents privately before deciding whether to order disclosure.

In Oyewunmi v Attorney General Western Nigeria,³ the Supreme Court held that courts should rely on the fair hearing provisions of the Constitution whenever privilege is invoked, to prevent injustice. The production of a ministerial affidavit or certificate does not automatically prevent the court from inquiring into whether the privilege claim is justified.

The practical test the court applies is a balancing one. On one side is the public interest in the administration of justice: the parties and the court need access to all relevant evidence to reach a just result. On the other side is the public interest that the court is asked to protect: state security, diplomatic relations, the effective functioning of government, or the protection of confidential police methods. Where the public interest in disclosure outweighs the interest in secrecy, the court will order disclosure. Where the interest in secrecy is more compelling, the privilege claim succeeds.

Judicial officers: Section 188. A category adjacent to official privilege is the protection given to judicial officers. Section 188 provides that no justice or other person before whom proceedings are held can be compelled to answer any question as to their own conduct in court, or as to anything which came to their knowledge while sitting in their judicial capacity. This privilege is limited to the judicial function itself: questions about other matters arising during the judge’s tenure do not fall within section 188.

The Constitutional Dimension of Official Privilege

The tension between official privilege and the right to fair hearing under section 36 of the 1999 Constitution is one of the most important dimensions of this area.

Section 36(1) guarantees fair hearing. Section 36(6)(b) gives every accused person the right to adequate time and facilities for the preparation of their defence. Section 36(6)(d) gives every accused the right to examine prosecution witnesses.

Where the prosecution relies on evidence obtained through official channels, but the defence is unable to access, challenge, or cross-examine on that evidence because it is protected by official privilege, the accused’s right to fair hearing is compromised. The accused cannot effectively challenge evidence they are not allowed to see or test.

The 2011 Act’s in camera inspection mechanism under section 243 is a partial response to this tension: the judge sees the document, even if the parties do not, and makes an informed decision about whether it should be disclosed. But the judge’s inspection does not fully replicate the adversarial testing of the evidence, since neither party is present in chambers to make submissions on the specific contents of the document.

The court is therefore left to balance the privilege claim against the fair hearing right on a case-by-case basis. Unlike some jurisdictions where a middle path has been developed, such as through special advocates who can see classified material without revealing it to the accused directly, Nigerian law has not yet developed a systematic institutional solution to this dilemma.

The burden and standard of proof dimension is also engaged: if state privilege prevents the accused from accessing evidence that might establish their innocence or undermine the prosecution’s case, the constitutional standard of proof beyond reasonable doubt becomes difficult to apply fairly.

Source Protection: Section 189

Section 189 of the Evidence Act 2011 provides that no magistrate or police officer shall be compelled to say whence they got any information as to the commission of any offence. This is a narrow but important protection for informants and intelligence sources in the criminal justice system.

The purpose is to protect the identity of persons who provide information about criminal activity to law enforcement. If informants could be compelled to be identified through evidence proceedings, the flow of intelligence information to the police would dry up. The protection extends to the officer receiving the information: they cannot be compelled to disclose the source even if ordered to do so.

Section 189 is narrower than official privilege under section 190. It applies specifically to information about the commission of offences, and to magistrates and police officers as the protected class. It does not extend to all public officers or all categories of official information.

Legal Professional Privilege

Legal professional privilege is the protection given to confidential communications between a legal practitioner and their client made for the purpose of giving or receiving legal advice. It is one of the strongest privileges in the law of evidence and its justification is fundamental to the functioning of the legal system.

Two provisions of the 2011 Act govern this area:

Section 192 provides that no legal practitioner shall at any time be permitted, unless with their client’s express consent, to disclose any communication made to the legal practitioner in the course and for the purpose of their employment as such, or to state the contents or condition of any document with which they have become acquainted in the course and for the purpose of their professional employment, or to disclose any advice given by them to the client in the course and for the purpose of such employment. Section 193 extends section 192 to interpreters and clerks working with the legal practitioner.

Section 195 provides the client’s corresponding right: a client is not compellable to disclose, and cannot be required to produce, any confidential communication that passed between the client and their legal adviser in their professional character, if the communication was made to enable the client to obtain or the adviser to give legal advice.

The practical difference between sections 192 and 195 is the direction of the protection. Section 192 binds the lawyer: the lawyer cannot be compelled to reveal what the client said. Section 195 binds the court proceedings: the client cannot be required to produce documents or communications passing between them and their legal adviser. Both sections serve the same overarching purpose, but they address it from different angles.

The rationale is simple: if clients could not speak openly to their lawyers without fear that those communications would be compelled in evidence, they would be unable to take proper legal advice. The entire system of legal representation depends on the confidentiality of the lawyer-client relationship.

The privilege belongs to the client, not to the lawyer. Only the client can waive it. A lawyer cannot decide to disclose privileged communications on the client’s behalf without the client’s consent. Section 194 reinforces this by providing that the privilege is not waived merely because the client or lawyer volunteers related evidence: the act of giving some evidence does not automatically open the door to all other privileged communications.

Conditions for Legal Professional Privilege

For legal professional privilege to apply, three conditions must be satisfied.

The communication must be between a legal practitioner and their client.

The communication must be made in the course of professional employment, meaning it must be connected to the lawyer’s role as legal adviser. A casual conversation between a lawyer and a client on unrelated matters is not privileged.

The communication must be made in confidence. If the communication was made in the presence of third parties in circumstances suggesting it was not intended to be confidential, privilege may not apply.

Litigation Privilege

A related but distinct privilege applies to documents prepared for the dominant purpose of litigation. In Waugh v British Railways Board,⁴ the House of Lords held that documents prepared for the dominant purpose of use in litigation are privileged. Nigerian courts have adopted this approach. Documents created in anticipation of litigation, such as witness statements prepared in advance of trial, instructions to counsel, and advice from counsel, are privileged. Documents created in the ordinary course of business are not, even if they later become relevant to litigation.

Loss of Legal Professional Privilege

Privilege is lost in several circumstances. The client may waive it, either expressly or by conduct. If the client discloses the content of the privileged communication to third parties in a manner inconsistent with maintaining confidentiality, privilege is lost.

The privilege does not protect communications made in furtherance of a crime or fraud. Section 192(1)(a) provides that the protection under section 192 does not apply to any communication made in furtherance of any illegal purpose. Section 192(1)(b) provides that the protection does not apply to any fact observed by a legal practitioner in the course of their employment showing that a crime or fraud has been committed since the commencement of the employment. In R v Cox and Railton,⁵ the court held that advice given to assist the commission of fraud is not privileged. The connection between this exception and the treatment of confessions and voluntariness is worth noting: where a client’s communication to a lawyer constitutes an admission or disclosure of ongoing criminal intent, the lawyer cannot shield it behind privilege.

Without Prejudice Communications: Section 196

Section 196 of the Evidence Act 2011 provides that evidence of statements made without prejudice is not admissible unless both parties consent to the admission.

The without prejudice rule protects communications made in genuine attempts to settle a dispute from being used in evidence if the settlement fails. The rationale is to encourage parties to negotiate freely without fear that their concessions will be held against them.

The privilege only applies to communications made in genuine settlement negotiations. Communications that are not genuinely aimed at settlement, or statements of completed fact rather than negotiating positions, do not attract the protection merely because they are labelled “without prejudice.” And the privilege belongs to both parties to the negotiation: neither can unilaterally waive it without the consent of the other. In Walker v Wilsher,⁶ the court applied this principle. The connection between without prejudice communications and admissions in evidence law is important: a concession made in without prejudice correspondence is an admission, but one that is protected from being placed before the court precisely because the law wants parties to be able to make admissions in the course of settlement without consequence.

The Privilege Against Self-Incrimination: Section 183

Section 183 of the Evidence Act 2011 provides that no witness shall be compelled to answer any question if the answer would, in the opinion of the court, have a tendency to expose the witness or the spouse of the witness to any criminal charge, penalty, or forfeiture.

The constitutional foundation of this privilege is section 36(11) of the 1999 Constitution, which provides that no person tried for a criminal offence shall be compelled to give evidence at trial. The section 183 privilege applies more broadly, however: it extends to any witness in any proceeding, not only the accused in criminal trials.

The privilege can be claimed for specific questions. It is not a blanket refusal to testify. Where a witness claims section 183 protection, the court decides whether the risk of incrimination is genuine. In Blunt v Park Lane Hotel,⁷ the court held that the privilege must be claimed for specific questions rather than invoked as a general refusal to answer. Where the accused chooses to testify, section 183 provides that they may be asked, and are bound to answer, questions in cross-examination tending to incriminate them as to the offence charged.

Marital Communications: Section 187

Section 187 of the Evidence Act 2011 provides that no husband shall be compellable to disclose any communication made to him by his wife during their marriage, and no wife shall be compellable to disclose any communication made to her by her husband during their marriage.

This privilege is narrower than the spousal competence and compellability rules. It applies specifically to confidential communications between spouses, not to everything the spouses know or observed. A spouse may be required to testify about events they witnessed that were not communications from the other spouse, but cannot be compelled to reveal what the other spouse said to them in confidence during the marriage.

The privilege belongs to the communicating spouse. Only the spouse who made the communication can waive it.

A Quick Reference Table

Key Cases

Conway v Rimmer (1968) AC 910 The House of Lords held that courts have power to override a ministerial claim of privilege and inspect documents in camera to determine whether the claim is justified. This reversed the absolute deference to executive certificates in Duncan v Cammell Laird and is now the approach reflected in sections 190 and 243 of the 2011 Act.

Duncan v Cammell Laird (1942) AC 624 The House of Lords held that a ministerial certificate claiming state privilege was conclusive. This approach was followed in Nigeria in Johnson v Sarkins. It was subsequently reversed in England by Conway v Rimmer and the same movement occurred in Nigerian law through the 2011 Act’s reforms.

Oyewunmi v Attorney General Western Nigeria The Supreme Court held that courts should rely on the fair hearing provisions of the Constitution whenever privilege is invoked to prevent injustice. A ministerial certificate does not automatically prevent the court from inquiring into the claim.

Waugh v British Railways Board (1980) AC 521 The House of Lords held that documents are privileged only if the dominant purpose of their creation was litigation. Where a document has two purposes, privilege applies only if litigation was the dominant one.

R v Cox and Railton (1884) 14 QBD 153 Legal professional privilege does not apply to communications made to facilitate crime or fraud.

Walker v Wilsher (1889) 23 QBD 335 Neither party to settlement negotiations can unilaterally waive the without prejudice privilege attaching to those negotiations.

Blunt v Park Lane Hotel (1942) 2 KB 253 The privilege against self-incrimination must be claimed for specific questions rather than invoked as a blanket refusal to answer.

Problem Question Framework

When a problem question raises issues about whether evidence should be withheld or compelled, apply this framework.

First, identify the type of privilege claimed. Is it official privilege under sections 190 or 191, source protection under section 189, legal professional privilege under sections 192 or 195, without prejudice under section 196, self-incrimination under section 183, or marital communications under section 187?

Second, check whether the conditions for the specific privilege are satisfied. For legal professional privilege, was the communication between lawyer and client, in the course of professional employment, and in confidence? For official privilege, has the head of department certified that disclosure would be injurious to public interest?

Third, if official privilege is claimed, apply sections 190 and 243. The court may order the document produced to the judge in chambers. The court is not bound by the certificate.

Fourth, distinguish sections 192 and 195. Section 192 restricts what the lawyer can disclose. Section 195 restricts what can be demanded from the client or their documents. Both are aspects of legal professional privilege but engage differently depending on who is being compelled.

Fifth, balance the privilege against the rights of the opposing party. Does admitting the evidence serve a compelling interest in justice? In criminal proceedings, does excluding it violate the right to fair hearing under section 36 of the 1999 Constitution?

Sixth, identify who holds the privilege and whether they have waived it, either expressly or by conduct. Note that section 194 provides that related evidence being volunteered does not automatically waive all other privileged communications.

Seventh, check for exceptions. In legal professional privilege, is the communication one made to facilitate crime or fraud under section 192(1)(a) and (b)? If yes, the privilege does not apply.

Common Student Mistakes

The first mistake is citing wrong section numbers. Official privilege is in sections 190 and 191 (not “sections 192 to 196”). Self-incrimination is section 183 (not section 204, which is sedition). Marital communications are in section 187 (not section 195, which is confidential communication with legal advisers). Without prejudice is section 196 (not section 194, which deals with privilege not being waived by volunteering evidence). These errors arise from using lecture notes based on the old Evidence Act.

The second mistake is treating legal professional privilege as a single undivided provision. Sections 192 and 195 address the same relationship from different directions. Section 192 binds the lawyer; section 195 protects the client’s documents and communications.

The third mistake is thinking the lawyer can waive legal professional privilege. The privilege belongs to the client. Only the client can waive it.

The fourth mistake is treating official privilege as absolute once the minister certifies it. The proviso to section 190 and section 243 expressly empower the court to inspect the document in chambers and override the certificate if the interests of justice require it.

The fifth mistake is confusing the without prejudice rule with a general protection for any communication labelled “without prejudice.” The rule only applies to communications made in genuine settlement negotiations.

The sixth mistake is ignoring the constitutional dimension. Official privilege and legal professional privilege both interact with section 36 of the 1999 Constitution’s fair hearing guarantee. In criminal cases especially, a court that excludes significant evidence through privilege must ensure that the accused’s constitutional rights are not being violated in the process.

The seventh mistake is ignoring section 189 on source protection in problem questions involving police or magistrate evidence about informants. This is a narrow but specific provision that applies to those categories of witnesses, distinct from the broader official privilege provisions.

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Footnotes

¹ Duncan v Cammell Laird (1942) AC 624.

² Conway v Rimmer (1968) AC 910.

³ Oyewunmi v Attorney General Western Nigeria (cited in Eyongndi and Oyagiri, “Privileged Communication and Fair Hearing Under the 2011 Evidence Act” (CUAB 2023)).

⁴ Waugh v British Railways Board (1980) AC 521.

⁵ R v Cox and Railton (1884) 14 QBD 153.

⁶ Walker v Wilsher (1889) 23 QBD 335.

⁷ Blunt v Park Lane Hotel (1942) 2 KB 253.