Author(s): KPOMASIRUCHI OTEYI & PRAISE ISIOMA OTEYI | Special Edition JUNE 2024
Abstract
It is a rule of public policy based on the proposition that it is better to settle than to fight, confidential overturemade in course of negotiation are excluded from evidence. This legal rule is of common law origin and it emphasizes two purposes, firstly, the rule is to facilitate a free discussion by protecting the proposals and discussion from disclosure in the proceedings ultimately to achieve a compromise. Secondly, whilst the ordinary meaning of ‘’without prejudice’’ is without prejudice to the position of the offeror if his offer is refused, it is not competent for one party to impose such terms on the other in respect of a document which, by its nature is capable of being used to the disadvantage of that other. Before the advent of the Evidence Act 2011 and the eventual codification of this principle of law in section 196, this rule was applied in our court through the aid of section 25 of the Evidence Act Cap 112 LFN 1990. However, it appears that every document marked without prejudice tend to acquire protection under this rule in a manner that suggest that this time-honoured legal rule is a sword rather than a shield. This paper seeks to demystify through the judicial application of this rule before and after its codification by the Evidence Act 2011 whether it is a shield or a sword.