EVALUATING THE UTILITIES OF SECTIONS 26 AND 196 OF THE EVIDENCE ACT 2011: ARE DOCUMENTS MARKED “WITHOUT PREJUDICE” A SHIELD OR A SWORD?

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.