Daily Law Tips (Tip 485) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
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HOW TO ENSURE THAT YOUR LETTERS AND WORDS CAN NOT BE USED AGAINST YOU IN COURT.
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Ordinarily, communication made between persons can be used in any civil or criminal proceeding/case in a court. However, there are exceptions to this, that allow certain communication between persons not to be used in court over civil cases.
Communication made expressly or impliedly “Without Prejudice” in the course of negotiation for settlement of a dispute cannot be used in any civil proceedings in proof of matters stated in it, involving same parties on same issues.
The Supreme Court in the case of NWADIKE & ORS v. IBEKWE & ORS, stated that, ”Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions;… Letters and other communications, however, are only protected when there was a dispute or negotiations pending between the parties, and the letters were bona fide written with a view to its compromise… And the protection applies only in the same action, and between the same parties, and not between them and third persons, but letters and negotiations between solicitors are inadmissible against themselves as well as against their clients.”
Also, the Supreme Court reiterated the above recently in the case of ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD, when it stated that; “That being the law it falls to reason that the letter dated 2nd March 2009 having been made in the process of reconciling the dispute between the parties and so the Court of Appeal was right to have upheld the decision of the trial Court on the document. The principle is anchored on the basis that at the point of mediation, parties should speak freely all in the quest for a peaceful resolution of the dispute. This principle of free discussion will be seriously prejudiced or impaired if any offer or admission made in the process of the negotiation could be given in evidence and used in support of a party’s case in Court afterwards where the negotiation breaks down.”
The above judgements of the apex court on this issue are in line with the Evidence Act, where it states that in civil cases, no admission is relevant, if such admission was made where there is express or implied condition that no evidence of such admission can be given.
My authorities are;
1. Sections 26 and 196 of the Evidence Act, 2011.
2. NWADIKE & ORS v. IBEKWE & ORS (1987) LPELR-2087(SC).
3. ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR-46541(SC)
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